Climate Change

Lord Sheldon: asked Her Majesty's Government:
	What comparison they have made of the consequences of climate change for the United Kingdom and for other countries.

Lord Bach: My Lords, climate change is obviously a global issue. The United Kingdom is giving increasing attention to understanding climate change impacts on both the UK and other countries, particularly developing countries, to help them assess their vulnerability. Last year, Defra funded a global assessment of climate change impacts by sector. This report highlighted that the most severe negative effects are most likely to occur in less developed countries and that up to 70 per cent of the world's coastal wetlands could be lost by the 2080s.

Lord Sheldon: My Lords, I thank my noble friend for that reply. Although climate change could have serious consequences for many countries, is it not likely that its effect on Britain would be rather less severe? In such a situation, should we be taking such a prominent position ahead of those countries which are considered so much more at risk of global warming?

Lord Bach: My Lords, it is certainly right that climate change may lead to some positive consequences for the United Kingdom but they are likely to be negated by the negative consequences which will affect this country as well. We are right to be extremely cautious indeed about seeing any real positive advantages in climate change for the United Kingdom. There is a balance to be struck. We feel that it is essential to look after the interests of the United Kingdom so far as climate change is concerned, but it is also in our interests to make sure that developing countries, in particular, are protected as much as they can be and are able to deal with climate change over the years to come. The world is becoming smaller and smaller and the consequences of some disaster occurring in Bangladesh, for example, will very much affect Britain and its citizens.

Lord Lawson of Blaby: My Lords, is the Minister aware that there is increasing evidence that adaptation to any problems of climate change—whether man made or natural—is far more cost effective than attempts at mitigation, which cannot work if they are not carried out on a global basis, which, of course, they are not? The Minister referred to the issue of rising sea levels but is he aware that the problem could be more effectively met by improved sea defences? This would be a much more sensible use of funds than the vast amounts that are being spent in a doomed attempt to mitigate the effects of climate change.

Lord Bach: My Lords, until recently there has been, as the noble Lord is implying, more emphasis on mitigation and financial incentives for mitigation than on adaptation. But the balance is now shifting towards adapting to climate change. For example, Defra has commissioned research on assessing the costs of adaptation options both for ourselves and for other countries.

Lord Tomlinson: My Lords, does my noble friend agree that carbon emissions are making a major contribution to climate change? Will he therefore confirm that his department and the Ministers within it are now enthusiastic supporters of the recent announcement made by my right honourable friend the Prime Minister?

Lord Bach: My Lords, we are always enthusiastic supporters of any pronouncement by my right honourable friend the Prime Minister, but in this case particularly so.

Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that if we called it "global chilling", people in England might be more worried than they are generally, because the idea of warming is quite cosy? Further, I am sure that the Minister is aware of yesterday's report from the National Farmers Union on the effects of climate change on agriculture. What are the Government doing to ensure the capacity of the UK to feed itself and the future of food production in the face of climate change?

Lord Bach: My Lords, we are aware of the NFU document, which is an important contribution to a debate that has taken off in the past year or so. We are of course concerned that climate change may affect the way in which British agriculture is conducted, so, along with the National Farmers Union and other interested bodies, we are researching what we can do to anticipate as best we can what we will be farming in years to come. This is an important matter and the noble Baroness is right when she implies that the consequences for the United Kingdom can be pretty severe.

Lord Tanlaw: My Lords, will the Minister confirm that there is no problem with the possible stoppage of the Gulf stream and the very dramatic effect that that would have on the northern latitudes, particularly Scotland, were it to occur, as some scientists believe it might?

Lord Bach: My Lords, for a variety of reasons, it would be a very serious matter if that was to occur. That would affect not just the United Kingdom but the continent of Europe. One does not know whether that will happen but it is clearly a danger.

Lord Dixon-Smith: My Lords, economic modelling appears to indicate that in developed economies, the cost of switching from a high-carbon emissions economy to a low-carbon emissions economy is relatively small in the context of the overall economic situation. Have the Government undertaken any studies of what will happen in less developed economies, where the situation is remarkably different, to see whether the same, relatively neutral, effect applies there? If that were the case, it would be so much easier to persuade those countries to take action on global warming.

Lord Bach: My Lords, I appreciate the noble Lord's question, but we have to take notice of the wish and requirement of developing countries to grow. It is all very well for us in the developed countries that enjoy a very high standard of living to be self-righteous about climate change and say what we can do to mitigate or adapt to it, but it would not be acceptable for developing countries to stop growing because of climate change. That is why we support the idea that there should be discussions between the developed countries and those developing countries, particularly China and India, which are not signed up to Kyoto. What we need to tackle the global problem is global action. We are driving forward a complementary approach to formal target-setting. These matters are being discussed at Montreal as we speak.

Lord Davies of Coity: My Lords, I wonder whether my noble friend—

Lord Rooker: My Lords, we must move on because we are now in the ninth minute.

MRSA

Baroness Pitkeathley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a survivor of MRSA.
	The Question was as follows:
	To ask Her Majesty's Government what is their response to reports that tests for methicillin resistant staphylococcus aureus (MRSA) may be falsely positive as a result of using a single laboratory.

Lord Warner: My Lords, I am sure that the whole House congratulates my noble friend on that.
	Laboratories doing microbiological investigations should be accredited or registered for accreditation. Tests must be undertaken in accordance with approved standards and operating procedures. The results should be validated by process controls, internal quality control and participation in an external quality assurance program. It is disappointing that test results for MRSA produced by unsound methods are given wide publicity in the media. This causes unnecessary public concern and wastes NHS resources in countering them.

Baroness Pitkeathley: My Lords, I thank my noble friend for that helpful reply. Does he agree that the continued use of one particular laboratory, which has questionable qualifications and results, by the tabloid press shows more interest in criticising the NHS than in reporting the facts? Is he further concerned that this particular laboratory appears to derive most of its income from selling disinfectants to combat MRSA and thus might perhaps be seen to have a vested interest in achieving positive results?

Lord Warner: My Lords, I entirely agree with my noble friend's concerns about the laboratory in question and the uncritical acceptance of its results by parts of the media. The main source of the misleading information in the media is Chemsol, which is run by a person who is not qualified in microbiology, is not a member of a recognised professional body and whose so-called laboratory does not meet UK accreditation standards. The methods used in this laboratory do not distinguish between harmless bacteria found on the skin and the potentially harmful MRSA.

Baroness O'Cathain: My Lords, if the laboratory does not reach accreditation standards, why do the Government not close it down?

Lord Warner: My Lords—

Noble Lords: Oh!

Lord Warner: Wait for it, my Lords; there is quite a good answer.
	Dr Malyszewicz, the owner and operator of this so-called laboratory—and I am using the term advisedly—is not a member of a recognised professional body as a microbiologist. Nor is he a registered healthcare scientist or medical doctor. His laboratory is not accredited as a diagnostic laboratory. In those circumstances, he is not actually claiming to be any of the things for which we could take professional action against him.

Baroness Neuberger: My Lords—

Lord Soley: My Lords—

Lord Rooker: My Lords, it is the Liberal Democrats' turn.

Baroness Neuberger: My Lords, given what the Minister has said, what else could be done to indicate to the public and the media more widely the concerns that we obviously share around the House about people passing themselves off as experts in microbiology when they are not?

Lord Warner: My Lords, I would certainly commend to the House the work done by the BBC in its program "You and Yours" on Radio 4 on 14 November, which exposed the circumstances involved. We sent down our inspector of microbiology as long ago as July 2004 to inspect these facilities, which were described as a "garden shed" on the Radio 4 programme I mentioned. We have written to the media to explain the circumstances and given them copies of the inspector of microbiology's report. We expect some parts of the media to behave with a little more responsibility when we have given them this information.

Lord Soley: My Lords, is that not the core of the problem? The MRSA scandal is not the first example of a media scare, with people being genuinely worried and scared by a story that had virtually no substance to it. There have been many other examples of science being misreported in this way. It is not for this House or even the Minister but perhaps for the scientific bodies and, inadequate as it is, the Press Complaints Commission to start looking at how hopes are raised unrealistically and fears are raised unreasonably by press stories that show no scientific understanding. That also undermines public confidence in scientific thought and method.

Lord Warner: My Lords, I agree entirely with my noble friend's remarks. We all accept that there are some serious issues around MRSA in this country, as there are throughout the whole of Europe, that have to be tackled; but they have to be tackled responsibly and not irresponsibly as has been the case in this area.

Baroness Tonge: My Lords—

Lord Skelmersdale: My Lords—

Baroness Masham of Ilton: My Lords—

Lord Rooker: My Lords, it is the turn of the Cross Benches.

Baroness Masham of Ilton: My Lords, would it not be a good idea to make MRSA a notifiable condition so that a qualified person would sign the form?

Lord Warner: My Lords, consideration has been given to that although it is not the situation at the moment. However, we are the first government to introduce a mandatory surveillance reporting scheme on all healthcare-associated infections. We publish the results on MRSA as part of that. The scheme is being conducted by the Health Protection Agency.

Lord Skelmersdale: My Lords, I understand that the laboratory which has been so rightly criticised by your Lordships today is not the only one involved in this report. The Minister talked about "validation". I assume that he meant validation not of laboratories but of tests. In the days of the Public Health Laboratory Service, difficult tests were almost invariably checked in other labs within the service. What is the position now?

Lord Warner: My Lords, there is an arrangement for accreditation, and I can send noble Lords the full particulars. As I said in my Answer, they are based on quality assurance, quality controls and participation in an external quality assurance scheme. So people are not just self-regulating. They are applying in a similar way to that which the noble Lord mentioned.

Baroness Tonge: My Lords, has the Minister read Florence Nightingale's Notes on Nursing, which was written in 1860 before bacteria were even discovered? It contains an excellent blueprint for hospital hygiene and good nursing care. I wonder whether he would undertake to send it to all hospital managers for Christmas this year.

Lord Warner: My Lords, I certainly would not want healthcare managers to be diverted from their current tasks in managing the NHS and achieving financial balance. However, I shall undertake to read the book if the noble Baroness will undertake to make a full study of all the measures that the Government have taken to improve hand hygiene and tackle MRSA.

Public Bodies

Baroness Sharples: asked Her Majesty's Government:
	Whether there has been an increase in the number of quangos since 1997.

Lord Bassam of Brighton: My Lords, information on public bodies sponsored by central government is provided annually in the Cabinet Office publication Public Bodies, which records information as at 31 March each year. In 1997, the Cabinet Office recorded that there were 1,128 public bodies reporting to UK government departments and what are now the devolved administrations. As at 31 March this year there were 910 public bodies reporting to UK government departments, not including bodies reporting to the devolved administrations.

Baroness Sharples: My Lords, I find that Answer very interesting. Would the Minister not agree that independent reports show that there are over 100 more quangos now than there were in 1997 and that more than 100 quangocrats—it is an awful word—are earning in excess of £100,000 a year? Mr Blair said in 1996 that he would consign quangos to "history's dustbin", but since then there have been a great many more. Is it not perhaps time that Mr Blair had a new buzzword—"relocation, relocation, relocation"—because I have counted 250 quangos based in London?

Lord Bassam of Brighton: My Lords, I have provided figures which suggest that we have continued the long process of merging and reducing the number of non-departmental public bodies. Indeed, we are actively pursuing and continuing that policy as I speak with the merger of regulatory bodies which are down from 31 to 11. In the agricultural field we are considering reducing the number of levy boards and so on. So this is an active area of government policy. Like the noble Baroness, we are concerned to ensure that we do not develop public bodies which are not necessary and are not accountable.

Lord Borrie: My Lords, does my noble friend the Minister deprecate the assumption behind this Question that quangos are necessarily less efficient, less flexible and less useful in organising public affairs than more traditional bodies such as government departments and local authorities?

Lord Bassam of Brighton: My Lords, I am not surprised that my noble friend makes that important point. Naturally, I share his view very much. I think that non-departmental public bodies—to give them the more accurate description—are very effective in their delivery of services and the way in which they regulate. They are, of course, fully accountable for the funding they receive. Inevitably all governments turn to non-departmental public bodies to provide a whole range of services that are not necessarily best provided directly through government departments.

Lord Howe of Aberavon: My Lords, in the light of the point made by the noble Lord, Lord Borrie, has the Minister noticed that the expenditure, for example, of the Electoral Commission has risen from £6 million four years ago to £25 million in the latest year? Is that not a body which is considering, with less wisdom, the same questions that might have been considered by Speakers' Conferences of Parliament rather than by an independent quango? Is it not a very good example of a quango which we could do without?

Lord Bassam of Brighton: My Lords, I am slightly surprised by the noble and learned Lord's approach to this issue. Inevitably the Electoral Commission spends more now than when it was established, but the party opposite was very supportive of its development. Having read the Conservative Party's attack on public bodies at the time of the general election, conducted by John Redwood MP, I did not notice that the Electoral Commission was one of those organisations which the Conservatives would abolish, had they won the election.

Lord Maclennan of Rogart: My Lords, what progress has been made towards the achievement of the Government's target for these bodies of 50 per cent representation by women by the end of this year?

Lord Bassam of Brighton: My Lords, during the lifetime of the Government we have made steady progress in that regard. Roughly speaking, I believe that women represent about 35 per cent of the membership of those bodies. In the past year that figure has stalled, but we continue to encourage, through the process of appointment, an increase in the number of women represented on those organisations.

Lord Morgan: My Lords, does my noble friend agree that the Government have in part dealt with the problem of quangos through democracy; that is, dealing with a vast array of quangos in Scotland and Wales through devolution—which was so misguidedly opposed by the party opposite, whose rescue is now apparently coming from Mr Cameron?

Lord Bassam of Brighton: My Lords, the noble Lord makes an extremely valuable contribution to this debate and I entirely agree with him. Noble Lords would not expect me to do otherwise.

Lord Hurd of Westwell: My Lords, does the Minister agree that there is no magic in the process of merging quangos, which he praised, if the quangos concerned do not have a great deal in common? Does he further agree that in the case of criminal justice inspectorates, the Government seem to be merging bodies producing not a saving in cost but a small increase and considerably decreasing their effectiveness?

Lord Bassam of Brighton: My Lords, we approach the subject of merging bodies, as the noble Lord described it, with great care. Where interests, particularly in the criminal justice field, seem to us to be easily aligned and to work together, it makes good sense to effect a merger. I am sure that the noble Lord, with his interest in ensuring good governance, would encourage that process, not just in the criminal justice field but in all other fields of public policy.

Lord Campbell-Savours: My Lords, what constraints do we have in place to ensure that quangos do not expand unnecessarily?

Lord Bassam of Brighton: My Lords, they have to account to the Minister and to the department. They can also be brought before the Public Accounts Committee with their chief executive, and they have to properly operate within the effective constraints on public expenditure.

Lord Taverne: My Lords, do the Government agree that the powers of some quangos should perhaps be strengthened in the light of the previous subject discussed in this House? Is there not a case for having a Press Complaints Commission with proper teeth and a chairman who is truly independent of the press?

Lord Bassam of Brighton: My Lords, it is a generous invitation offered by the noble Lord. He makes an important point, which has been part of our debates. No doubt those points will continue to be made.

Lord Skelmersdale: My Lords, the Minister sang the Government's praises at reducing the number of quangos from 1,128 to 910 over the lifetime of this Government; but he is not comparing like with like, because the 910 as of 31 March this year exclude those in the devolved bodies. Much more importantly, he may remember that on 20 May last year the then Secretary of State for Health promised a 50 per cent reduction in quangos saving half a billion pounds with a reduction of 25 per cent of posts. Which ones have been abolished?

Lord Bassam of Brighton: My Lords, there are too many for me to list. As the noble Lord made a direct reference to health, I understand from my noble friend Lord Warner that only today the noble Lord has launched a review of, for instance, the strategic health authorities, with a commitment to seek to make more efficient use of their energies and expertise.

Gas Supply

Lord Ezra: asked Her Majesty's Government:
	Whether the United Kingdom-continental gas interconnector is being used to the full to help meet the current demands for gas in Great Britain.

Lord Davies of Oldham: My Lords, since the additional import capacity on the Belgium-UK gas interconnector was commissioned on 8 November, the interconnector has been importing in response to price signals. However, it has not been importing at its full capacity. It has typically been operating at between 53 and 63 per cent of capacity, with a maximum of 72 per cent on 17 November. The reason for that under-utilisation is not clear. Both the Government and Ofgem are pursuing this at the European level.

Lord Ezra: My Lords, is it not disturbing that the interconnector should not have been operating at full capacity, bearing in mind that the spot prices for gas in the UK are substantially higher than on the Continent? Does that not suggest that our link with the European gas network is insecure, and that in the future, although the interconnector capacity might increase, we could still be vulnerable at times of peak demand? Is that not a serious situation, in view of our increased requirements for imports of gas?

Lord Davies of Oldham: My Lords, it is a serious situation, which is why the Minister for Energy—my honourable friend in the other place—intends to raise this issue when he chairs the Energy Council tomorrow. It is also why the chairman of Ofgem has written to the European Commission indicating why the situation is utterly unsatisfactory. It is also why key figures in the European Commission have indicated that the imperfections in the market are not tolerable.

Lord Crickhowell: My Lords, is the noble Lord aware of the considerable concern among heavy fuel users at the lack of transparency in the present arrangements and the scope that there may be for suppliers to manage them to the disadvantage of this country? That fear is reinforced by the granting of licences for LNG terminals that exclude third-party use and which seem guaranteed to ensure that Britain pays the highest price in the market or has its supplies diverted elsewhere. Is he leaving this matter entirely to the Commission, or are the Government prepared to take action about the matters that are under their control?

Lord Davies of Oldham: My Lords, the methods we are pursuing at the European Commission are the appropriate channels for effective action, and we have made it absolutely clear that we expect action to be taken. The noble Lord is right that there are anxieties for the very big consumers of gas in view of the shortages. We expected the interconnector to bring more gas into the UK than has proven to be the case. The noble Lord is right that the price being offered is high enough and competitive. Therefore, there are imperfections in the market which alone explain why this gas is not available.
	It is important to the Government that there has been substantial private investment in terminals for LNG because we will be dependent on additional storage facilities, and we are pleased to record the fact that several major terminals will come on stream in the very near future.

Lord O'Neill of Clackmannan: My Lords, does my noble friend agree that two inquiries previously conducted by the European Commission have been unable to discern anything other than the illiberalisation of the German grid system as the simple and obvious reason why we cannot get adequate supplies of gas through Europe from the Caspian and other areas? Is it not up to the Commission to take proper action against the German authorities, who wish to introduce neither proper liberalisation nor effective regulation of the throughput of gas through their grid system?

Lord Davies of Oldham: My Lords, my noble friend has vast experience in this area which I cannot begin to match, and could I express things as trenchantly and accurately as he has done.

Lord Redesdale: My Lords, will the construction of the interconnector from the Norwegian gas fields to the north-east affect the spot price of gas supplies in the UK?

Lord Davies of Oldham: In due course, my Lords, but the noble Lord will recognise that there are no short cuts in these matters. We had expected a better performance from the interconnector in Belgium and that is why we are taking this up as an issue of real urgency. It highlights the issue that my noble friend Lord O'Neill referred to; namely, that there are weaknesses in the market that Europe needs to tackle.

Baroness Miller of Hendon: My Lords, if, as the Prime Minister said in the other place, some companies that depend on gas may be affected by the shortage of supply, why has one of his ministerial colleagues said that this country is "awash with gas"? Who is right?

Lord Davies of Oldham: My Lords, our gas supplies are certainly sufficient to guarantee that domestic consumers will have all their needs met throughout this winter, as will the vast majority of industry. However, certain sectors that are high consumers of gas frequently reduce their demand for it when gas prices reach a certain level, because it is in their economic interests to do so. We think that that process may happen over this winter.

Lighter Evenings (Experiment) Bill [HL]

Lord Tanlaw: My Lords, I beg to introduce a Bill to advance time by one hour throughout the year for an experimental period, and for connected purposes. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Tanlaw.)
	On Question, Bill read a first time, and ordered to be printed.

Business of the House: Standing Order 41

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with tomorrow to allow the Motion standing in the name of the Lord Radice to be taken before the Motion in the name of the Baroness Morgan of Drefelin.—(Baroness Amos.)

On Question, Motion agreed to.

European Court of Human Rights (Immunities and Privileges) (Amendment) Order 2005

European Forest Institute (Legal Capacities) Order 2005

Lord Triesman: My Lords, I beg to move the two Motions standing in my name on the Order Paper.
	Moved, That the draft orders laid before the House on 3 November and 26 October be approved [8th Report from the Joint Committee].—(Lord Triesman.)

On Question, Motion agreed to.

Pensions Commission Report

Lord Hunt of Kings Heath: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Work and Pensions. The Statement is as follows:
	"With permission, Mr Speaker, I should like to make a Statement on the publication of today's report by the Pensions Commission.
	"In making its recommendations, the Pensions Commission has acknowledged the progress we have made since 1997. Its proposals are designed to build on this success—and I believe it is important to consider them in this context.
	"As Lord Turner has recognised, the Government's first priority on coming into office in 1997 was to tackle pensioner poverty. This was absolutely the right thing to do. We have succeeded in lifting nearly 2 million pensioners out of absolute poverty. We are now spending £11 billion extra each year on pensioners, with almost half of this spending going to the poorest third. And thanks to measures such as the minimum income guarantee, pension credit, winter fuel payments and a 7 per cent real terms increase in the basic state pension, we have ensured that pensioners will never again suffer the indignity of living on as little as £69 a week—the scandalous legacy of pensioner poverty we inherited when we came into office.
	"In our second phase of reform we took action to tackle the loss of confidence in the private pensions market. This included the pensions mis-selling scandal we inherited. In 1997, less than 2 per cent of pension mis-selling cases had been satisfactorily resolved. By the end of 2002, more than 99 per cent of consumers with mis-selling claims had been compensated—with total compensation reaching £11 billion.
	"Through the Pension Protection Fund, the Pensions Regulator and the Financial Assistance Scheme, the Pensions Act 2004 is helping to respond to the problems experienced by defined benefit occupational pensions and to boost security for scheme members. And the introduction of the Sandler suite and the stakeholder pension has been an important step in facilitating low-cost private savings. I believe this amounts to a record of achievement of which this Government can be proud.
	"Despite this progress, we recognise there are still significant and serious issues we need to address. I believe there are three. First, the demographics. When our grandparents reached 65, they could expect to live another 11 years. The 20th century's tremendous advances in science, welfare and health means that today we can expect to live another 19 years beyond 65 and our children another 24 years. In 1950, we spent 18 per cent of our adult life in retirement. We now spend 30 per cent. By 2050, there will be 50 per cent more pensioners than today. Critically, by 2050, there will be two people of working age for every pensioner compared with 10 people 100 years ago.
	"Secondly, we know people need to save more. Our 2002 Green Paper first highlighted the need to enable people to save more or work longer to achieve the income they want in retirement. And it established the Pensions Commission to review our long-term savings regime. The commission has calculated that nearly 10 million people are not saving enough for their retirement. While some have suggested that this challenge will be averted by the growth in housing assets, this is at best a partial solution. People would need to release £100,000 to generate £100 per week pension, which is far from easy when the average house price is only just over £180,000—and when people still need to live somewhere in retirement.
	"Thirdly, we know that the existing system is complex—possibly the most complex in the world. It produces unfair outcomes for women and carers; and there remains the question over how to ensure an adequate and sustainable state pension for future generations. As today's report makes clear:
	'The problems in our pensions system will grow increasingly worse unless a new pensions settlement for the 21st century is now debated, agreed and put in place'.
	Put quite simply, I do not believe we can afford to ignore the problems that the Pensions Commission has identified. We must instead ensure that future generations can plan for their retirement in a sensible way. The choice is not between the status quo and reform. The question is over how we act—not whether or when.
	"The Pensions Commission was very clear in its first report last year that there was not a pensions crisis now. It has made this clear again today. But the pensions of tomorrow depend on decisions people make to save today. It argued that the failure to respond to this challenge would lead to a crisis in 20 years' time. If we do nothing, future pensioners will be 30 per cent worse off relative to workers than they are today.
	"So the Pensions Commission has put forward a comprehensive package of reforms to address these challenges. In relation to state provision, the commission recommends,
	'a reform of State pension provision to make it simpler to understand and less means tested than it would become if current indexation arrangements continued'.
	"The commission makes clear that there are a variety of options to secure its objectives. Its preferred way forward is a higher basic state pension indexed to average earnings growth, ideally starting in 2010 or 2011, as the public expenditure benefits of the rise in women's state pension age begin to flow through. The commission has also proposed a universal basic state pension based on residency rather than on contributions.
	"The trade-off would be a higher state pension age. This would be phased in gradually in proportion to the increase in life expectancy. For example, it could rise to 66 by 2030, 67 by 2040 and 68 by 2050. This would not affect anyone 50 and over. Furthermore, based on the commission's assumptions, a 41-year-old could face only one year's increase from now; a 32 year-old, two years; and a 23 year-old, three years.
	"These changes are designed to underpin a major extension of workplace savings. Here, the commission recommends a new, simple, low cost savings scheme. All employees would be automatically enrolled into either a high quality employer pension scheme or a newly created national pensions saving scheme but with the right to opt out. Employers would be required to make a matching contribution. The commission also makes proposals to tackle inequality in the pension system, particularly for women and carers.
	"The Government welcome the broad framework of the Pensions Commission proposals and options and believe they are the right basis for the debate to come. There is much to be discussed and decided in relation to the detail of that framework. Our response will be based on the five key tests that I set out last week.
	"First, do these proposals promote personal responsibility? The role of the state is to provide a floor through which no one can fall but, as we have made clear, the primary responsibility for security in old age must ultimately rest with the individual and the family.
	"Secondly, are they fair? Our future system must continue to protect the poorest; it must be fair to women and carers; fair to employers and workers, both in the public and private sectors; and fair to those who have saved.
	"Thirdly, are they affordable? There are a number of points of the commission proposals which raise the prospect of additional government spending. For example, there is the re-linking of the basic state pension to earnings, scrapped by the previous Conservative government in 1980. There is also the proposal making the basic state pension universal from 75, which would benefit women. In particular, we therefore have to test all the costings. We cannot take decisions without first determining the affordability of proposals and there is no point in us or anyone else making commitments on anything other than a sensible and sustainable financial basis. As the Chancellor has made clear, there will be no relaxation in our fiscal discipline. And we will not put the long-term stability of the public finances at risk.
	"This test will be absolutely central. A near 50 per cent rise in the number of pensioners between now and 2050 presents challenges and choices for the country about the proportion of its wealth that should be used to support retirement.
	"Fourthly, do they simplify the system? Any credible package of reform must represent a clear deal between citizens and the state, so that people know what the Government will do for them and what is expected of themselves.
	"Fifthly, are they sustainable? People must have the confidence to plan for their retirement. An enduring national consensus must be our goal.
	"The Pensions Commission's first report last October was a comprehensive analysis of the UK pensions system. I believe today's report is an important milestone towards a lasting pensions settlement. I should like to put on record on behalf of the Government, and I hope the House as a whole, our thanks to Lord Turner and his fellow commissioners Jeannie Drake and John Hills for their work during the past three years. They have made a tremendous contribution to one of the most important public policy challenges facing the country today.
	"The publication of this second report from the Pensions Commission today marks the beginning of this national debate, not the end of it. As far as the specific recommendations are concerned, we are ruling nothing in and nothing out. We will welcome ideas and proposals from the political parties, employers, trade unions and everyone with an interest in the future of our pensions system.
	"Over the next few months, we will examine the policy recommendations made by the commission in detail. The Pensions Commission has called for a national debate about the right way forward to start as soon as possible. I agree. We will therefore be undertaking a major consultation exercise, talking to people of all ages, in all parts of the country. I have asked the Pensions Commission to continue its involvement in this debate over the next few months as we move from diagnosis and analysis to proposition and decision. I want this debate to involve every section of our community as we work towards the publication of a White Paper in the spring.
	"Previous Labour governments have risen to the challenge of securing long-term reform of our pension system to meet the challenges of their time. From Clement Attlee to Barbara Castle, crucial decisions have been taken by politicians who could see the benefits of long-term reform.
	"I believe it is our turn to see the scale and depth of the challenge in the way that previous generations of politicians have seen those challenges. This should be our benchmark: to lay the foundations for reform in the 21st century.
	"The need to get this right is clear; the responsibility to do so is even clearer, for this generation and the next.
	"I commend this Statement to the House."

Lord Skelmersdale: My Lords, the House will be most grateful to the Minister for repeating the Statement on the report of the Pensions Commission that was made in another place a few hours ago—which makes my life considerably easier, as did the Minister's arranging to have the full report delivered to me before 9.30 this morning. I am grateful for that. I have therefore had more time to study the report than most of your Lordships, although this is not the time to go into too much detail.
	As far as the Statement goes, the major surprise is that the Government decided to have a Statement at all, given the Chancellor's reaction to at least part of the report. The Statement starts not with a reaction to the report but with government spin on what they have done for pensioners since they came into office. What the Statement does not say is what else has been happening in this area since 1997. To quote the Secretary of State in the Statement, I too,
	"believe it is important to consider them in this context".
	Since 1997, more than 10,000 pension schemes have started winding up. Currently, 45 per cent of UK workers—12.7 million employees—have absolutely no pension provision: a rise of 5 per cent since 1997, or 2.5 million extra people. Labour's pensions tax, introduced by Gordon Brown in 1997, has cost pension funds, and thus pensioners, £5 billion a year. Last year, the Turner commission estimated that 9 million people are not saving enough. The household savings ratio has almost halved since the Government came into power. Some 80,000 people have lost retirement savings because their company pension schemes have closed. More than 5 million pensioners are now subject to means-testing, nearly half of all pensioners. Typical pensioners have seen more than one-third of the increase in the basic state pension snatched back in higher council tax. The Institute of Economic Affairs has estimated that the UK's unfunded public sector pension liabilities are a mammoth £817 billion.
	The first thing I would say about the report is that it is a very professional and powerful one, as we would expect from any body chaired by the noble Lord, Lord Turner. It also follows on very neatly from the interim report published last year. First we were invited to review the problems of future retirement income sufficiency, and now we look at the commission's preferred solutions. That has been made very much easier for all of us by the leaks we have seen over the past week or so.
	When I was a horticultural student, I was taught that leeks had the highest gross margin of any extensive horticultural crop. That is clearly the case today as the leaks have been substantially correct. For example, the means-testing of pension credit is totally discredited and my party's stand on this has been thoroughly vindicated. The proposed national savings scheme is almost exactly as we have been led to expect, though in my reading of the report, I have not found anything to suggest that it should be run by the state. Just as well, as that would annoy many on the Benches behind me. However, where the state does come into the picture is with a 1 per cent contribution. The scheme should aim, says the commission, to give a 45 per cent replacement rate for the median earner. There are obvious problems here, not least for the self-employed and those employed in small and medium-sized businesses.
	There is not much difference, either, in what we expected as far as the state pension is concerned. It is suggested that this should be linked to both earnings and residency. The second state pension should continue to be contributory but ultimately become flat rate. The oft-mentioned arrangements for carers should be improved. On state pension ages, the report is less prescriptive, commenting that they will have to rise broadly in line with increases in life expectancy, so that each generation spends a roughly similar proportion of adult life contributing to, and receiving, a state pension.
	We could have had a useful debate solely on the subject of state pensions, though I suppose that the usual channels would see this as being too restrictive. None the less, it is a debate we must have, and I hope that the Minister will be able to persuade the Chief Whip of that imperative and in government time at that.
	Finally, the commission's report is based on the premise that there is no immediate crisis in average pensioner income levels today. However, it makes it crystal clear that unless policies change, pension provisions will become increasingly inadequate and unequal over the medium term, which is described as 10 to 40 years ahead. We are therefore glad to see from press reports that the Prime Minister intends to grasp this particular nettle and that the Government will publish their proposals in the spring. I note that this is to be in the form of a White rather than a Green Paper. I cannot help but wonder whether this is the right way to go about the Government's professed desire to get a consensus going on this issue, not least in the Cabinet itself.

Lord Oakeshott of Seagrove Bay: My Lords, I declare my interest as a pension fund investment manager for the past 30 years. I also declare my interest as a citizen of this country in not having to wait another 30 years for a government who will take the tough decisions that we desperately need to solve our looming pensions crisis. The full horror of the crisis may not be seen for another 20 or 30 years, but in the pensions world, even if that is not today, it is certainly tomorrow.
	From these Benches, and on behalf of the whole country, I thank the noble Lord, Lord Turner, for this masterly report. We agree with both its analysis of the problem and its vision for the way ahead. If anyone deserves an index-linked pension for life from this country, it is the noble Lord, Lord Turner, not Gordon Brown. The noble Lord's report is the only basis for a national consensus across the three main parties; across business, trade unions; and across the whole pensions world. This report is far too important to be sent off to that great elephants' graveyard of pension reviews, reports, inquiries and working parties set up and then ignored by this Government. We will not get another chance like this in my lifetime.
	I thank the noble Lord, Lord Hunt, for reading the Statement delivered in another place. In no way do I criticise him personally. He did not write the Statement, nor, I expect, did the Secretary of State. I do not expect that it was written in the DWP at all. It reads like a real patchwork quilt—a piece from Blair and a piece from Brown—but taken together the Statement damns Turner with faint praise. Do the Government agree with the noble Lord's central conclusion:
	"We have now concluded that the current voluntary private funded system, combined with the current state system, is not fit for purpose looking forward"?
	Is the answer yes or no? Do the Government agree with Turner that,
	"a significant future growth of means-testing would undermine voluntary private pension provision by the very groups of people most in danger of under-provision"?
	Pension credits were a useful emergency response to the Conservative meanness over many years on the basic state pension. But pension credits are now well past their sell-by date. Do the Government believe that it is sustainable to have more than 70 per cent of pensioners on means-tested benefits by 2050—unless the Chancellor cuts the projected real value of the means-tested pension credit? That is what the leak was all about last week. But there is not much point holding a leak inquiry when there is a letter bomb with brown fingerprints all over it sitting in the in-tray of the noble Lord, Lord Turner.
	Does the Chancellor endorse the statement made by the Secretary of State two hours ago that the public sector pension deal—keeping retirement at 60 for the next 40 years—will not be re-opened? Forget the fat cats. What do the Government believe many millions of council and income tax payers with no private pension provision of their own think of that as they wait until they are 67 to get their state pensions? We support Turner on raising the state pension age to 67, with proper notice. But how has the Prime Minister got the sheer brass neck to talk about his government not ducking difficult decisions after this squalid sell-out to the public sector trade unions?
	How and when will the Government decide whether they support the plan of the noble Lord, Lord Turner, for a national pension savings scheme, which was first outlined by the Liberal Democrats in our policy paper last year entitled Dignity and security in retirement? That, in addition to auto-enrolment, is the only way to get many middle and lower income people to save regularly and reliably without seeing their savings eaten up by excessive management costs and, all too often, irresponsible financial advisers.
	Precisely how the scheme will operate and all of the details of the policy proposals of the noble Lord, Lord Turner, are obviously up for debate. But all of us will need to compromise for the common good and accept that some aspects of Turner may not be exactly as each of us would have designed them. We prefer, for example, Turner's option 1 of his two main options—to go to the full citizen's pension as soon as possible. But let us get there through a consensus that will stick.
	Lastly, can the Government tell us how the present means-testing system will ever reach all the poor pensioners who must be protected? Some 1.7 million of them are still missing out. Look at the chaos in tax credits. The whole Brown-based means-testing system is rotten to the core. Our pension system is broken beyond repair. There is no way of patching it up so that women can get fair treatment. Turner is the way to fix it.
	We have heard far too much today from the Government about debates and milestones and precious little about what they are actually going to do. Pensions policy has been caught in a vicious crossfire between No. 10 and No. 11 Downing Street for most of the life of this Government. What a way to run a pensions policy and what a way to run a country.

Lord Hunt of Kings Heath: My Lords, I think I am grateful to the noble Lords, Lord Skelmersdale and Lord Oakeshott, for their comments. I listened for signs of consensus and think I may have discovered one or two threads. I am very clear that the way forward has to be to reach consensus if we are to produce long-term stability and consistency in pensions policy.
	I shall ignore the reference to tittle-tattle and media froth, which has exercised us over the past four or five days. Turner is a very serious report. It is 408 pages and a very good read. I know that in the days ahead noble Lords will want to go into the details of the report. Let me say right away to the noble Lord, Lord Skelmersdale, that I very much welcome an opportunity to debate the report more extensively in your Lordships' House. I am sure that we can rely on the usual channels to arrange something at an appropriate moment. The next few months provide an opportunity to debate the very important conclusions in the report. I do not think that it would be right for the Government to simply come here and state which of the recommendations they will accept and which they will not. It is much better to have a thorough debate. That will help us towards reaching the consensus that is so important. I hope that noble Lords, as much as stakeholders and the general public outside, will take part in that debate.
	I thought that we had a very good debate on pensions, opened by the noble Lord, Lord Fowler, only two weeks ago. I was therefore disappointed that payable tax credits were mentioned today as I thought I had disposed of the issue quite conclusively in that debate.
	I say to the noble Lord, Lord Skelmersdale, first, that I do not accept his figure of £5 billion. He will know that the Pensions Policy Institute does not accept that figure. He might have mentioned—might he not?—his government's reduction of dividend relief in 1993. He might have mentioned the change in tax treatment of defined benefit surpluses in 1987. He might have mentioned the equity boom of the 1980s and 1990s—which, as the Pensions Commission pointed out, created the illusion of a sustainable pension fund surplus—or, indeed, the pensions mis-selling scandal. It is wrong to focus on only one element.
	The noble Lord mentioned self-employed people. I agree that, in seeking to encourage as many people as possible to save for their future pensions, the issue of the self-employed is important. I think that he knows that the report discusses the issue of self-employed people. Although its authors feel that auto-enrolment is not a practical proposition for self-employed people, there should be encouragement for them voluntarily to sign on to the national pension savings scheme. The noble Lord is right about the two flat-rate pensions that the commission proposes—basic state pension and the second state pension—and that the recommendation is to accelerate the flat-rated nature of the second state pension. It is also worth pointing out that the tentative proposal in the report is that the second flat-rate state pension would continue to be contribution-based, as opposed to the residence test that would apply to the basic state pension.
	The noble Lord asked about the national pension savings scheme. One chapter in the report goes into extensive detail about the nature of the national pension savings scheme, recommending that it would be a non-departmental public body and that it would organise a range of funds, including a low-risk fund, a default fund for those who do not choose a particular fund and other funds. People joining the scheme would be able to decide the percentages between the different funds. Clearly, all those matters are up for debate. We will be very interested to hear the views of noble Lords.
	On means-testing, the report makes some important recommendations to which we shall give careful consideration. All that I would say to noble Lords—I believe that it is underpinned by what is in the Turner report—is that the development of pension credit has brought greater support and comfort to many poor people. Whatever debate we have about means-testing, we should not underestimate the enormous benefit that pension credit has brought to many people.
	I turn to the comments of the noble Lord, Lord Oakeshott. The Government are prepared to take tough decisions, but we want to do that on the basis of an informed debate, which can take place in the light of this excellent and comprehensive report. Yes, we will come back with our proposals in the spring, and I assure him that we are prepared to take those tough decisions. I invite all Members of this House from other parties to join us in supporting those decisions because this is a once-for-all opportunity. We will not have another opportunity to develop the consensus to reach a lasting settlement on pensions policy.
	The noble Lord asked whether the current system is fit for purpose. To paraphrase the noble Lord, Lord Turner, he concludes that, although there are many issues about pension provision, the real crisis is not now, it is in the time to come. That is why we have this opportunity to make changes to ensure that we do not have a pensions crisis in the long-term future. I shall not repeat what I said about means-testing. It is easy to detract from means-testing, but having met many older people who have benefited from pensions credit, let us not underestimate it.
	On the question of public sector pensions and the recent negotiations by the Government with representatives of employees, I repeat clearly what my right honourable friend said in the other place a couple of hours ago: we have no intention of reopening that question. Looking at the rate of turnover in the Civil Service—something like 10 per cent a year—I have seen estimates suggesting that, by 2033, 86 per cent of employees will be employed under the new pension arrangements coming in next year in which 65 years old will be the pension age for public sector workers. It is also very important to distinguish between the state pension age and the age of retirement in an occupational scheme, which can often be at variance. I do not believe that the agreement is any different in principle from the approach which many private sector pension funds have taken where new members coming into a scheme are under new provisions, but existing members often carry on under existing provisions. That is what has happened in this place.
	Finally, the noble Lord, Lord Oakeshott, mentioned women and care. The report makes a number of important points, including the recommendations on contributions based on residency as opposed to national insurance contributions for basic state pension.

Lord Barnett: My Lords, I apologise for not having read the 764 pages of the report and its appendices. I have glanced at some of them. Will my noble friend correct more emphatically than he has already in the Statement, the fact that the proposal to retire at the age of 67 rather than at 65 will, on the assumptions made in the report, not happen until 2040? The plain fact is that the media has left a clear impression that it will be tomorrow. It is important that it is made crystal clear that the assumption is 2040.
	Indexation with earnings, as my noble friend said in the Statement, is proposed to start in 2010-11. Will he confirm that the Government are not ruling out that proposition in any circumstances? He referred to things being simpler to understand. It would astonish me, and I assume that it would astonish my noble friend, if the average member of the public reads the 764 pages. I suggest that it would be helpful to the great public debate that has been suggested if a simpler, shorter booklet were published summarising some of this massive report. I do not know what the price would be; usually that is clear but in this case it is not.
	Does the Minister nevertheless accept that this excellent report, despite everything that has been said about it, raises more questions than answers in relation to the serious debate that will take place? The real answer remains for a consensus, although I did not detect any from the Opposition spokesman. Of course, the noble Lord, Lord Oakeshott, has already indicated—

Lord Evans of Temple Guiting: My Lords, I am sorry to interrupt the noble Lord, but we ask questions at this stage, not make small speeches. We have only 20 minutes and a lot of people wish to contribute.

Lord Barnett: My Lords, I will sit down now and hope that my noble friend will answer my questions.

Lord Hunt of Kings Heath: My Lords, the noble Lord is right about the suggested state pension age. I think I made it clear in the Statement that it would be gradual. The recommendation is a proposal; it is not a definitive statement by the Pensions Commission. Essentially, starting in 2020, in 10 or 11 years the pension age will gradually go up by one year. In another 10 or 11 years it will go up by two years. He is absolutely right about that.
	On indexation, I repeat that nothing has been ruled in or ruled out. We have to look at these matters carefully, and the issue of affordability will be a very important consideration. On my noble friend's third point about simplification, I do not know the price, but I shall find out. I agree with my noble friend. The executive summary is over 40 pages long, so if we are to have a meaningful debate with the public, the Pensions Commission needs to find a way of putting its message over. The commission is certainly happy to carry on and help in the debate, so I am sure that I shall be able to refer this matter on.

Lord Higgins: My Lords, does the Minister recall that in the foreword to the first report, Turner stated that,
	"it is essential that the problems facing Britain's pension system are analysed comprehensively, looking at how all the different facets of the system relate to one another".
	But Turner has not done that. A central feature of this report is that the pension age should be raised. The question of whether the public service pension age should be raised is clearly at the centre of current controversy. But—surprise, surprise—officials and Ministers formed Turner's terms of reference so as to exclude this issue. So Turner has not dealt with the question of public service pension age and was not allowed to do so.
	We have had enough reports. I have lost count of how many reports, Green Papers and White Papers have been produced over the past eight years. We do not need another White Paper. What we need, as the Minister has rightly pointed out, is a move towards consensus. But it is absolutely clear that Ministers in the Government are completely at loggerheads on this issue. The present Chancellor, with his obsession with means-testing, tax credits and complexity, is a major barrier to making progress. When are the Government going to sort themselves out and take action?

Lord Hunt of Kings Heath: My Lords, I greatly admire the noble Lord, Lord Higgins, who for eight years did a wonderful job from the Opposition Front Bench on matters to do with pensions. But I am disappointed at the tone he has taken. This is a very comprehensive report—

Lord Higgins: What about public sector pensions?

Lord Hunt of Kings Heath: I shall turn to that issue in a moment. I repeat: this is a comprehensive report. If the Government had come before noble Lords today and said, "We have had a moment to read through the report and this is what we are going to do", it would not be the right way forward. Because we need to erect as wide a tent as possible in order to take forward the proposals that we will bring before the House, it is important to spend a little time debating and discussing these issues. We do not run away from making decisions; we are determined to make them. While the noble Lord refers to media comment over the past few days, as a government we are resolved to do the right thing.
	On public sector pensions, I think that I have already answered the point. We are not going to reopen the particular issue raised by the noble Lords, Lord Oakeshott and Lord Skelmersdale. I have already stated that we are following what has happened in the private sector. I have also already explained that when considering the turnover of staff, in effect very few people will actually keep the current pension provisions over the long term.

Lord Kirkwood of Kirkhope: My Lords, absolutely no one expects the Minister to set out the Government's position on a report of such complexity this afternoon, but he is weighing his words very carefully and dancing around the question of the extent to which the Government agree with the general direction of travel set out in the Turner recommendations. If he is expecting to promote a White Paper next spring, he must have some idea of what the Government think. It would help to establish the debate and the consensus if the Minister were able to be direct about whether he thought that the noble Lord, Lord Turner, was playing in the right ballpark to reach some agreement and to bring forward to this House a Bill during the next calendar year so that this can be dealt with as a matter of some urgency.

Lord Hunt of Kings Heath: My Lords, let me repeat the paragraph in the Statement that clearly expresses the Government's position on this. My right honourable friend in another place said:
	"the Government welcome the broad framework of the Pensions Commission proposals and options and believe they are the right basis for the debate to come. There is much to be discussed and decided in relation to the detail of that framework".
	As I said earlier, at this stage we are ruling nothing in and nothing out. I do not think I can be clearer about the firm view of the Government.

Baroness Hollis of Heigham: My Lords, I welcome the tone of the Statement and particularly my noble friend's repetition of the Government's support for the broad framework outlined in Turner. Like my noble friend, I am very proud of what our Government have done for poorer pensioners, especially women.
	Does my noble friend agree that one of the key tests of the sustainability of the report is what happens when you put up the gender filter, given that two-thirds of pensioners are women who, on average, have only a third of the income of men in retirement? Does he agree that the Turner report offers a set of propositions which are fair to women because they recognise women's unwaged work as well as waged work; because they would improve women's incomes in retirement by providing a 45 per cent replacement income; because they address simplicity by rolling out a universal state pension based on residency; and because, as a result, they encourage savings, which are crucial if women are to lift their income in retirement?
	Does my noble friend further agree that at the core of all of those proposals is a universal basic state pension based on residency? Does he accept that if the Government are to respond coherently and comprehensively, as I hope they will, they cannot and must not retreat back into tweaking an already over-tweaked system? That process would add to the costs and to the complexity, and still too many women would be outside the entitlement they need in old age?

Lord Hunt of Kings Heath: My Lords, according to the noble Lord, Lord Oakeshott, it is £49.50. I am sure he is right.
	My noble friend is right to suggest that any decision on the long-term future has to be very clear about the impact of those proposals on women. I certainly accept the important points she has made in relation to the need for the position of women to be of central focus. My noble friend is right that the Pensions Commission proposals which would particularly impact on women are the earnings uprating of the basic state pension; future accruals based on residency; and, in relation to the second state pension, which the commission argues should become flat-rated but based on a contributory principle, it suggests improving the system of credits.
	The commission also suggests that giving a universal pension to everyone over 75 would be the most appropriate solution to the more immediate problems, as my noble friend said. The words it uses are "ideally and subject to affordability". Of course, in coming to any view about these proposals, apart from the principle, the issue of affordability will be very important.

Lord Fowler: My Lords, surely we can agree that we should aim to get some political consensus in this area given the long lead-in time for pensions. Is it not the case that there is now widespread agreement with Turner that there should be a better state pension and better incentives for saving for other pensions? Does the Minister not understand that this consensus will be destroyed if the Government persist in their policy of having one retirement age for the public sector and another retirement age for the rest of the labour force? It is not true to say that this has been got up by the press. The aim to have a higher retirement age in the public sector was set out in the Government's own White Paper. The Government have done a U-turn upon their own policy. The Minister said that one of his tests was that policy should be fair. Does he consider this policy fair?

Lord Hunt of Kings Heath: My Lords, I certainly agree with the noble Lord's first sentence that the Turner report, and our consideration of it, offers us the opportunity of political consensus in the future, and I want to hold on to that in the next few months. I do not agree with the noble Lord's comments about public sector pensions. Let us make it clear: the state pension age, whatever it is in the future, will apply to public sector workers as much as to anyone else. The issue is, if they have an occupational pension, the age at which they are eligible to receive a pension. I repeat what I said earlier: what has happened here is no different from what happened to many private—

Noble Lords: My Lords—

Lord Hunt of Kings Heath: No, my Lords, it is no different from what happened to many private sector schemes where different arrangements were brought in for new staff newly joined and existing arrangements were maintained for existing members of staff. That is what is happening; the negotiation achieved a credible savings target in terms of costs. As I have already said, in practice, because of the turnover of staff in the public sector, to imagine that this means that the huge swathe of people currently employed will remain on the current provision is not so. By 2033, 86 per cent of people employed would be on the new pension conditions. I do not think that that is unfair.

Lord Mackie of Benshie: My Lords, I was very pleased to hear in the Statement that the Government were agreed that £69 a week was not an adequate pension by any means. The Minister is aware, I know, that many British pensioners are living on or receiving far less than they would if they lived in Commonwealth countries overseas. This, I understand, saves the Government about £400 million a year. I would like to know—this is relevant to the Statement—whether this is a permanent feature that the Government will build into their calculations of the cost.

Lord Hunt of Kings Heath: My Lords, some noble Lords will know that we had a very good debate on this about three weeks ago, led by the noble Baroness, Lady Greengross, who is not in her place. Briefly, it depends on whether this country has a reciprocal agreement with another country, so it makes a difference which country a particular pensioner lives in. We do not currently intend to revisit the matter.

Lord Lea of Crondall: My Lords, is my noble friend aware that many of us would welcome a full analysis in the White Paper of the relative position of the public and private sectors, including the average pension paid—which, in the Civil Service, is currently £2,000 a year—and a look at the difficulty of comparing apples with apples, unlike the sort of comparison attempted by the noble Lord, Lord Fowler, given that we have to compare people in their thirties, forties and fifties on a proper equitable basis?

Lord Hunt of Kings Heath: My Lords, my noble friend puts it very well. I do not think that we are served by continuing this discussion on public sector pensions. It is much better that we look to the future and, through the report, that we reach consensus. In terms of comparing like with like, my noble friend is absolutely right.

The Lord Bishop of Oxford: My Lords, the Minister is not able to solve all problems, but I would welcome his comments on a couple of related issues. I have the pleasure and privilege of working until I am 70. I put it like that because I enjoy my work. Millions of people find their work sheer drudgery. Worse than that, they will die either in work or shortly after they have retired. Thirty years ago, it was shown that the gap in life expectancy between professional groups and those towards the bottom of the socio-economic order was about four or five years. It has now widened to nine years and is widening still, so many millions of people will never enjoy a pension.

Lord Hunt of Kings Heath: My Lords, it will be a matter of great regret to me and other noble Lords when the right reverend Prelate finally has to retire and leave this House. Indeed, I do not know whether any members of the independent Appointments Commission are here, but they might take notice of that. He has been a splendid Member of this House.
	There are two points to be considered. One can think of many professions or people doing heavy manual labour where the prospect of working to a greater age is not particularly appealing. The Pensions Commission made some helpful points. It made it clear that we should look at training possibilities. I have come across a number of training schemes that took teachers and trained them to become inspectors of nurseries. They wanted to get out of the classroom but still had a great deal to offer. There are other opportunities.

Lord Forsyth of Drumlean: My Lords, I sympathise with the Minister's position and welcome his desire to see a consensus. I have not had a chance to read the report but I have seen it widely reported in recent days. Given the emphasis placed on the failure of the means-testing policy to encourage saving and the damage done by the decision to change the taxation of dividends on pension funds—both policies are the brainchild of the present Chancellor of the Exchequer—could we not achieve a consensus if the Chancellor were not in the picture? Everyone is in step except Gordon Brown.

Lord Hunt of Kings Heath: My Lords, I am sure that the noble Lord does not expect me to answer that.
	On the issue of savings, I have yet to see robust evidence to support the noble Lord's assertion. My department will shortly receive some research in this area which will be of interest. It is all very well for the noble Lord to make those comments about means-testing, but I repeat: more than 2 million people who were in poverty have come out of poverty. We cannot underestimate the impact of the pensions credit.

Commons Bill [HL]

Lord Bach: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be further considered on Report.—(Lord Bach.)

On Question, Motion agreed to.
	Clause 31 [Functions]:

Lord Tyler: moved Amendment No. 38:
	Page 17, line 39, at end insert—
	"( ) preparing management plans to seek eligibility for agri-environment schemes."

Lord Tyler: My Lords, this amendment stands in my name and that of my noble friend Lord Livsey of Talgarth. It would make explicit that there are real advantages to setting up a statutory commons association. Without this addition, there is a real danger that, despite all the effort that has been put into this legislation by the huge number of interested organisations that have contributed over many years and by the Government themselves, it will be a dead letter.
	In Grand Committee, frequent reference was made to the need to promote agri-environment schemes, not least by the Minister himself. There were also references to agri-environment schemes in earlier exchanges on Report. During a debate on Clause 27, the noble Earl, Lord Peel, said:
	"I suspect that in most cases the formation of a commons association will be for the purpose of entering into an agri-environment scheme".—[Official Report, 28/11/05; col. 73.]
	From my own experience of working with commoners on Bodmin Moor, I am sure that the noble Earl is right.
	To interpolate for those who do not know Bodmin Moor, we have a number of very sensitive natural habitats—ones that will need careful protection and would benefit from agri-environment schemes, as commoners are aware. Members of your Lordships' House who do not know Bodmin Moor may know of it only as the habitat of the famous beast of Bodmin Moor, but there are other species there that require careful protection.
	I was also delighted to note the positive comments from the Minister on matters relating to agri-environment schemes during Monday's debate. In response to Amendment No. 35, he said:
	"Commons associations are to be established primarily to improve the management of agricultural activities and vegetation on common land".—[Official Report, 28/11/05; col. 75.]
	If that is not an explicit endorsement of the purpose of our Amendment No. 38, I do not know what is.
	This is a vital carrot. Since there are apparently no sticks—at least none is visible—in the Bill, this clear statement of purpose is all the more important. The context for this legislation is absolutely crucial, as I am sure noble Lords who have connections with the agricultural community will recognise. Farmers, and especially hill farmers, face an especially difficult and uncertain future. Economic viability is balanced on a knife edge for them. Smaller family farms are already being swallowed up by large ranching enterprises—and the most likely route for survival is through participation in agri-environment schemes. That is the clear direction to be taken by the common agricultural policy over the next few years. The current transition through to 2012 simply ratchets up the critical role of the schemes year by year. Even if there is a further round of reform of the CAP, as we are constantly told may be the case, the one element of relative certainty is that the agri-environment schemes will become even more vital.
	I am sure that your Lordships' House is aware that this legislation has been many decades in gestation. The likelihood of a further opportunity to review and update the management of commons within the next 40 or even 50 years is very remote, so it must follow that we should place firmly in the Bill the need to make agri-environment schemes a clear responsibility of the new commons associations. At the very least, the preparation of management plans to qualify for those schemes should be an explicit function for them, and stated as such in Clause 31. My noble friends and I very much hope that the Minister will be true to his previous word and will accept our amendment. I beg to move.

Earl Peel: My Lords, as my Amendment No. 39 is grouped with Amendment No. 38, perhaps I may take the opportunity to speak to it now.
	In Committee I tabled an amendment designed to ensure that Clause 31(3)(b),
	"making rules relating to the leasing or licensing of rights of common",
	did not result in a commons association impinging on the rights of an owner of a common from leasing or letting his surplus rights. However, the Minister confirmed that the Government's own amendment dealt with the point and that there was no need for my amendment—and as a result I withdrew it.
	On reflection, however, there appears to me to be a further anomaly that needs examination, in that there are a number of cases when commons rights, which are not technically rights as they are part of the surplus, have been registered incorrectly as rights of common, either by the owner himself or, more likely, by his tenant. That would have been done during the registration period of the 1965 Act, and I think done more as a belt and braces exercise than for any other reason. However, because those so-called rights appear on the register, albeit incorrectly, they could be subjected to Clause 31(3)(b), which in my opinion would be incorrect.
	My amendment would prohibit a commons association being able to impinge on the owner's ability to let or lease such rights either now or in future. I should point out—and it is a crucial point—that such an amendment would not in any way affect the powers of the commons association to limit or impose conditions on the exercise of such rights under Clause 31(4)(a). A typical example would be when a commons association felt it appropriate to improve a reduction in stocking numbers across the common in order to comply with a particular agri-environment scheme, as the noble Lord, Lord Tyler, has just said.
	So, in other words, this amendment simply seeks to ensure that a commons association would not have the power to interfere with the letting of those surplus rights of common which are owned by the owner of the common and have been incorrectly registered but will be dealt with in the same way as the other rights of surplus which are vested in the owner but were not registered.

Baroness Miller of Chilthorne Domer: My Lords, I shall speak to my noble friend's Amendment No. 38. I anticipate that the Minister may say that this amendment is not necessary because under Clause 32(2)(a) and (b) a commons association can take all sorts of powers. However, a theme running through every debate we have had about agri-environment schemes concerns how important they are. As my noble friend said, they constitute the carrot. I hope that the Government will consider putting them up-front. I submit that they are more important than most of the provisions in paragraphs (a) to (f) of Clause 31(3) as they would implement most of the things that the Government wish to see happen. If commoners agree to have an agri-environment scheme, that obviates the need for public money to be spent buying out rights. The preparation of such a scheme is a positive use of public money and has the desirable element of flexibility. It would take into account the fact that, over time, an over-grazing problem may develop into an under-grazing problem. An agri-environment management scheme can be adapted to tackle that situation, whereas the buying out of rights cannot. My noble friend's amendment is fundamental to what the Government want to achieve.

The Earl of Caithness: My Lords, I support what my noble friend Lord Peel has said. The rights of the owner are in jeopardy because of this Bill. It needs to be made absolutely clear on the face of the Bill that they are not in jeopardy. To try to benefit from an agri-environment scheme a commoner or a common holder could put forward a proposal to form a commons association against the owner's wishes. That association will be formed if it is deemed appropriate and the owner will have to abide by that. As the noble Lord, Lord Tyler, said, farming is on a knife edge and if in due course some farmers wish to sell their rights of common, Natural England will be there to snap them up with taxpayers' money. If there has not been a successful application to form a commons association, the more common rights that Natural England acquires, the greater the chance of a commons association being formed against the owner's wishes. Therefore, in order to guard the legitimate interests of the owner, it is imperative that it is clearly spelt out in the Bill that the other rights are not affected, although, as my noble friend Lord Peel made clear, once a commons association had been formed, it would have to abide by the rules of that association.

Baroness Byford: My Lords, I shall speak to both amendments. I have great sympathy with the amendment moved by the noble Lord, Lord Tyler. When certain interests are clearly defined in the Bill it seems strange that the most important one is not included. I hope that the Government will take that into consideration. My noble friend Lord Peel has raised a very important issue. I remind noble Lords that on the previous Report day on Monday we discussed an association that would be governed by 10 people. Therefore, it is even more important that the points made by my noble friend and, indeed, by my noble friend Lord Caithness are taken into consideration; otherwise, it is possible that the options open to an owner might put him outside the loop as it were. I support the amendments.

Baroness Farrington of Ribbleton: My Lords, I begin by speaking to Amendment No. 38. I start by making plain that it is not necessary, because what the noble Lord seeks can already be done under Clause 32(2)(a) through the power to enter into agreements. The list of functions in subsection (3) is only illustrative of those that can be given to a commons association under subsection (1) of this clause, which must relate to the management of agricultural activities, vegetation, or common rights.
	We have already made it clear that the preparation and adoption of management plans is the sort of thing that can be undertaken under Clause 32 as an ancillary power. We see such plans more as an ancillary matter, which will help an association to carry out its functions conferred in its establishment order. Indeed, the amendment suggests that a management plan might be such an ancillary function, as it is to be drawn up to assist in an application for agri-environment funding. We remain unable to see any need to add that function to the illustrative list of functions in subsection (3).
	On Amendment No. 39, subsection (3)(b) provides that one of the functions that can be conferred on a commons association is the power to make rules relating to the leasing or licensing of rights of common. Those rules can relate only to rights of common. The making of such a rule would not—indeed it could not—affect an owner's right to lease or license the surplus grazing on a common. We are aware of situations where owners or their tenants have registered their right to the surplus grazing on a common in the commons register. Registration means that such a right has now become a right of common. That is the conclusive effect of Section 10 of the Commons Registration Act 1965. In that situation such a right would become subject to the rule-making power in subsection (3)(b).
	We certainly recognise the importance of an owner's entitlement to lease out or license his right to use the surplus. It would be open to the owner of a registered right to surrender it under Clause 13, thereby releasing the right back into the surplus on the common. Although a registered right of common would be susceptible to rules made under subsection (3)(b), the leasing or licensing of the surplus would not. The establishment of commons associations requires substantial support. The status quo is maintained regarding the owner's consent for others doing things on the land, such as managing the vegetation by means other than grazing. Leasing or licensing of the owner's surplus is not caught by the commons association's rules for commoners.
	An establishment order could also make special provision where the owner's surplus has been registered as a right of common. That might take the form of giving an association a rule-making power, which would include some protection for owners who have that problem. Of course, it will be appreciated that the making of any particular rule will have to be agreed to by those managing the association, so there would have to be consensus for such a provision to be made. The exercise of rights of common or exercise of rights to use the surplus—in other words the actual use of rights by any person—would still be subject to the rules made by the association. It is only the leasing and licensing of such rights that would not be subject to any rules made under subsection (3)(b). A provision would have to be made in an establishment order to deal with the issue. I hope that the noble Earl will not press his amendment when we reach it.

Earl Peel: My Lords, I understand that explanation, but under the Bill as it stands the surplus rights of common that have not been registered will be treated in one way and the surplus rights that have been registered—albeit incorrectly—will be treated in a different way. As the two are being differentiated, it seems that the Bill has inadvertently created a new type of commons right—in other words, surplus rights that have been incorrectly registered. I hear what the noble Baroness said, but I genuinely believe that she is incorrect.

Lord Inglewood: My Lords, I should like to put a point to the noble Baroness for clarification. In the event of some of the surplus grazing having been registered as a right, and therefore under the 1965 Act having become a right, surely it is possible for that right to be surrendered back to the owner of the soil.

Baroness Farrington of Ribbleton: My Lords, my understanding is that the noble Lord, Lord Inglewood, is correct. I hope that I will be corrected if I am wrong. I am not aware of any circumstance in which the error to which the noble Earl refers has occurred. I will look into it and see whether we have any evidence that it has, but my understanding is that the result of the owner having changed their position voluntarily under the Commons Registration Act 1965 is that it is a fact. My instinct is that one would be changing the effect of legislation retrospectively were one to interfere with that. I know that the noble Earl is greatly taxed by the issue. I am sure that he would appreciate further clarification, were it to be helpful to him, before Third Reading.

Lord Tyler: My Lords, I cannot pretend that I am not very disappointed by the noble Baroness's response. I am disappointed too that the noble Lord, Lord Bach, has not stirred her conscience to be more positive, because he was extremely positive in previous discussions on the whole issue of agri-environment schemes. I refer to the expressions of support given by my noble friend Lady Miller of Chilthorne Domer and the noble Baroness, Lady Byford. They both emphasised that we already have a number of comparatively minor issues illustrated under Clause 31(3)(a) to (f), including,
	"establishing and maintaining boundaries . . . removing unlawful boundaries and other encroachments . . . removing animals unlawfully permitted to graze".
	If those are the key illustrations of what a statutory commons association seeks to pursue, there will not be a great motive to set up the associations. The main motive for doing so all over the country will be to make the area eligible for agri-environment schemes.
	I therefore find it difficult to understand why the noble Baroness is ruling out the amendment on those grounds. However, I understand the way in which this place works, and I hope very much that she and her colleagues will think carefully—perhaps in respect of the representations from farming and other interests that I am sure that they will receive during the further stages of the Bill, both here and in the other place—and look at the issue again. It should be absolutely explicit, and I detect that there is support in other parts of the House. Nevertheless, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 39 not moved.]
	Clause 32 [Ancillary powers]:

Baroness Byford: moved Amendment No. 40:
	Page 18, line 28, after "of" insert "reasonable"

Baroness Byford: My Lords, in Committee we had many contributions on fees and the amounts that might be charged. The noble Lords, Lord Williams of Elvel and Lord Chorley, the noble Earl, Lord Caithness, and several others spoke about their concerns with this section of the Bill. We have statements from existing associations of commoners that cite fees of a few pounds leading, because of the numbers involved, to annual budgets of £50,000 or thereabouts. That is modest for some of what may be bigger groupings. Such organisations work to the clear benefit of the holders of rights, the land, and probably the general public. Smaller commons with fewer commoners may not have the formal organisation at all. One reason may be that the cost of creating one could be prohibitive.
	Under the Bill, however, commons associations will be encouraged—if not enforced—even where the burden is thinly spread. We are concerned that the commoners, some of whom will have small incomes—I suspect that some will have very little income at the moment—should not be placed under the type of pressure that is becoming ever more frequent for pensioners who are faced, for example, with rapidly mounting council tax bills. We are even more concerned that the setting of unreasonable fees may force commoners to abandon their rights. Were such a thing to happen, there is no doubt that some people would be unscrupulous enough to try to take advantage of the situation.
	When we debated this matter more fully in Grand Committee, the noble Baroness, Lady Farrington, stated:
	"we envisage associations raising funds through subscriptions paid by commoners and other participants".—[Official Report, 9/11/05; col. GC218.]
	Who, in particular, are "other participants"? She went on to use the expression, "at a modest level". I believe that a "reasonable" level is probably better phraseology and our amendment uses that word. I hope that the Minister who responds will consider the amendment as a reasonable contribution which I hope will improve the Bill.
	In her response, the noble Baroness, Lady Farrington, said the setting of fees was primarily a matter for the associations. Yes, that is right; but it is important that the associations set fees that are relevant and appropriate, and we feel that the insertion of our little word "reasonable" is preferable to her word "modest", as recorded in the Official Report. I beg to move.

Lord Livsey of Talgarth: My Lords, I certainly agree with the general thrust of the amendment. Clearly, "reasonable" is a reasonable word. However, it is difficult to define and it could hamstring some commons authorities if different people interpreted it in different ways. I think that the word "modest" is preferable but I recognise the basic thrust of the amendment and wonder whether some solution can be found.

Lord Bach: My Lords, the amendment would ensure that any fees required to be paid to a commons association in connection with the exercise of rights of common, or rights to use the surplus, or in connection with membership of, or participation in, the association, are reasonable. One of the ancillary powers given to a commons association is a power to raise money. This clause makes it clear that the power to raise money can involve the levying of fees in connection with the exercise of rights of common, or exercise of rights to use the surplus. Money can also be raised through charging a membership fee or a fee for participating in the association. These are the approaches most likely to be taken when raising money to cover the operating costs of an association.
	Where interests in a common see benefits from forming an association, be it voluntary or statutory in nature, charging a fee in connection with the exercise of rights is a generally accepted approach for providing the small level of income required for operating purposes. We do not expect any fees that are levied to be very high. The levying of fees in connection with the exercise of rights is not unusual. The Dartmoor Commoners' Council has charged a small fee in connection with the exercise of rights for the past 20 years to fund its operations—for active graziers it has been 66 pence per livestock per year and for inactive graziers, 11 pence, with a minimum payment of £5 for any rights holders.
	Many existing commoners' associations charge a small annual subscription for membership which does not appear to cause any great hardship. For example, the Federation of Cumbria Commoners, with over 500 members, charges a small annual fee for membership, which, I believe, is £10. The size of the fee is decided through a majority vote at the annual general meeting of the federation.
	Any fee for membership, or in connection with the exercise of rights, is likely to be agreed through a majority vote taken by the representative body of the association or by all participants in the commons association at a general meeting. Fees will not be imposed by some external body; they will be determined by those who will have to pay them through a majority vote. As a result, any fees levied are likely to be at a level which is acceptable to those who will pay them. The reality is that members of an association are not going to levy unreasonably large fees on themselves.
	In any event, any exercise of a statutory power necessarily implies that the power must be exercised in accordance with the rules of natural justice. So the power to set fees under this subsection already means that, as and when it is exercised, it must be done in a reasonable manner, taking into account all the circumstances, including the purpose for which any fees are being levied. That is why we do not think that the words "reasonable" or "modest" need to appear in the Bill.
	The noble Baroness asked who the other participants were who might have to pay. Apart from the commoners, they might include the owner or the owner's tenant or licensee or anyone else entitled to make use of the grazing. In addition, people such as sporting rights holders might have to pay some sort of fee to exercise those rights.

Lord Jopling: My Lords, perhaps I may ask the noble Lord a question on a point that puzzles me. Under Clause 32(2), associations can acquire land. But with the sort of fees that the noble Lord was talking about—whether it is £10 in the case of the Cumbrian Commoners or £5,000 a year—they are probably not going to get very much land. If the association wished to acquire land under subsection (2)(d), would that be done through fees? In that case, it would amount to rather a lot of money and the fees would hardly be "modest". Can the Minister explain that?

Lord Bach: My Lords, I am grateful to the noble Lord for that question. Indeed, they will have the right to acquire or dispose of land, but I point out that they are potentially able to raise money from sources other than fees. Large sums of money for capital expenditure or more significant improvements could be raised through other means—for example, entering into agri-environment schemes, wayleaves for easements or car parking charges, if that was appropriate.
	Perhaps I may give some examples. On Danby Common—I do not know whether that North Yorkshire common is known to noble Lords—bracken control and cattle gridding were achieved through a combination of local and European Union sources of funding, including Objective 5b money. The Gower Commons initiative has undertaken cattle gridding, agricultural management and access work on commons with the assistance of money from the Heritage Lottery Fund. More than £200,000 in match funding has been provided by labour from commoners themselves on that common. And statutory bodies, such as boards of conservators, are often funded through precepts on local residents collected by the local authority through the council tax. My example there is the Malvern Board of Conservators. I am afraid that I have taken some time to answer the noble Lord's excellent question, but the answer is that there are other ways of raising money—not just in theory but in practice, too.

Lord Williams of Elvel: My Lords, before my noble friend sits down, can he confirm that commons associations will have no ability to borrow money from banks on no security whatever or on any security in order to acquire land or whatever it might be?

Lord Bach: My Lords, I am looking at Clause 32(2) as I answer my noble friend. There seems to be no reason why commons associations should not be able to borrow money from a bank, provided that the bank is prepared to lend it to them.

Baroness Byford: My Lords, I am grateful to noble Lords for their contributions. In Committee, we had a rather lengthy debate on this subject and I am sorry that my noble friend Lord Jopling was not able to be present then. Many questions were raised on how associations can and may raise money and for what the money will be used. Some people have great fears about the ability of commons associations to acquire land, which would be open to them, if they had that amount of money.
	I thank the Minister for giving those examples, but I have to draw his attention to the cross-over between where we are with this Bill and with the CROW Act. The CROW Act is enacted over the whole of the UK and says that people can park anywhere, walk anywhere and go anywhere; people do not have to go through car parks or use car parks, which could be a bonus. The fact that in towns we pay to park our cars and think nothing of it causes me to smile, as people in the country have a very strange view and a great reluctance to put £1 in a box to park their cars. If people do not have to park their cars in a car park, I suspect that they will park them wherever they possibly can. I do not follow the Minister's logic and I do not believe that some of the examples that he gave will necessarily raise the amount of money that he believes will be raised.
	I am faced with a very difficult situation. I am not happy with the Minister's response. I know that I cannot go away, asking him to think about it again, as that is not within the rules of Report stage. That is one of the disadvantages of having the Committee stage in Grand Committee. Ministers may shake their heads, but it makes it very difficult. I do not want to lose on this issue, as I probably shall, but I intend to seek the opinion of House.

On Question, Whether the said amendment (No. 40) shall be agreed to?
	Their Lordships divided: Contents, 123; Not-Contents, 140

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 35 [Rules: supplementary]:

Baroness Farrington of Ribbleton: moved Amendment No. 41:
	Page 20, line 19, at end insert—
	"(4) A direction under subsection (3) must set out the reason why the rule is being revoked.
	(5) Before revoking any rule under subsection (3) the appropriate national authority must consult—
	(a) the commons association; and
	(b) any other person it thinks appropriate."

Baroness Farrington of Ribbleton: My Lords, to address concerns expressed by Peers in Grand Committee, we have reconsidered Clause 35. Amendment No. 41 does two things. First, it ensures that where the national authority gives a direction revoking a rule made by an association, the direction must set out the reason why the rule is being revoked. Secondly, it requires the commons association to be consulted before any rule is revoked and allows the national authority to consult other persons as it sees fit. We agree that the national authority, having granted rule-making functions to an association, should be a little more circumspect before revoking such rules. We accept that local circumstances and the views of the commons association need to be taken into account, and our amendment achieves that.
	Government Amendments Nos. 42, 43 and 44 are in response to concerns expressed by Peers in Grand Committee that subsection (4) appeared to allow the national authority to amend or repeal any enactment, rather than those listed in subsection (2). We have reflected further on this issue and have decided to remove subsection (4) for the avoidance of any doubt.
	Amendments Nos. 43 and 44 make clear that the power in this clause may be exercised only as part and parcel of an establishment order that ensures that the consultation process and the requirement for substantial support from key interests will automatically apply to any changes made under Clause 36.
	We think that the amended clause meets the concerns expressed in Grand Committee and provides an appropriate mechanism for ensuring that adjustments can be made as necessary to existing arrangements to allow new associations to operate effectively. I beg to move.

The Duke of Montrose: My Lords, Amendment No. 41 is a very welcome response to our Grand Committee amendment. I thank the Minister for returning in this way. It is a reassuring amendment and ensures that a national authority will not be able to revoke a rule without explaining the need for it to the membership of the association. I think that we are all agreed that commons associations would be seen to be incredibly toothless if the appropriate national authority could strike down any of their rules without explanation.
	Amendment No. 44 is also a welcome amendment because it keeps the powers conferred on the national authority in check. Under this amendment the national authority will not be able to make an order that repeals any other enactment.

Lord Livsey of Talgarth: My Lords, we also welcome the amendment. Clause 35 is still pretty draconian, but this softens things somewhat. I assume that a commons association itself can still alter or revoke rules. The amendment would ensure that the commons association must be given reasons for revoking the rules. The amendment specifically inserts the words,
	"under subsection (3) the appropriate national authority must consult",
	with the commons association and other persons which it thinks appropriate. Although this provision is better, our view is that this is still a pretty hard-ball sort of clause in the context of the Bill.

Baroness Farrington of Ribbleton: My Lords, I thank the noble Duke, the Duke of Montrose, for his kind words and I welcome the support of the noble Lord, Lord Livsey. We responded to points made by those noble Lords in Committee, as well as points made by the noble Earl, Lord Caithness, and the noble Lord, Lord Tyler. I hope that noble Lords will support the Government's amendment.

On Question, amendment agreed to.
	Clause 36 [Consequential provision]:

Baroness Farrington of Ribbleton: moved Amendments Nos. 42 to 44:
	Page 20, line 22, after "order" insert "under section 26"
	Page 20, line 24, leave out from the first "conferred" to "in" in line 25 and insert "on a commons association"
	Page 21, line 1, leave out subsection (4).
	On Question, amendments agreed to.
	Clause 37 [Variation and revocation of establishment orders]:

The Duke of Montrose: moved Amendment No. 45:
	Page 21, line 15, at end insert "to an adjacent commons association for a period not exceeding 12 calendar months"

The Duke of Montrose: My Lords, the Bill provides for the transfer of rights of property and liabilities in cases where it is deemed that a commons association is no longer in operation or in a position to operate effectively. The Bill does not state to where the transfer should be made.
	We believe that it would be wrong to transfer rights and property to a governmental organisation if there were the slightest chance that a new association could arise. We feel that there should be provision for the short-term transfer to another commons association, pending either the creation of a replacement association or the takeover by an existing one. We do, however, believe that the interregnum should be short and within a definite closure date.
	We discussed this issue at some length in Committee, and, as the Minister said, there may well be good reasons why the association should be wound up. It may be difficult to find an association willing to take on the assets and liabilities, but we are still not entirely clear on what liabilities commons associations might generate during their lifetime and what will be involved in their winding-up or dissolution. I beg to move.

Lord Livsey of Talgarth: My Lords, we see this as keeping a commons association on hold for 12 months. It is undoubtedly desirable that if at all possible the commons association can be revived. It seems to us that one of the few ways of doing so is to put it into the—shall we say?—"co-operative custody" of an adjacent commons association for a period of 12 months. The amendment seems to us to be very reasonable. In the circumstances which we and the noble Duke have described, it is probably a constructive way to go about such a problem.

Lord Bach: My Lords, as we stated during the debate in Committee when we discussed this issue, an association may be wound up for a number of reasons and we must be able to provide for the transfer of its assets and liabilities in a range of circumstances. An association will undoubtedly have some assets—perhaps unspent fees or subscriptions from commoners, or property—and may have acquired rights of common that need to be dispersed. Of course, it may also have liabilities in the form of debts or outstanding obligations under agri-environment agreements. If an association is wound up, that must be done under the same procedure used to establish an association.
	Clause 37 describes that procedure, with its requirement for consultation and substantial support for the making of an order. In other words, interested parties in the association will have an opportunity to make representations about what should be done with the assets and liabilities of the association. There must be substantial support for the winding-up, just as there was for its establishment. An association will not be wound up without due regard to the interests of those involved in the association and the commons over which it has jurisdiction.
	In some cases, an association may be wound up to create a new association across a different grouping of commons or with completely different functions and representations of interest. The noble Duke recognised the possible need for such action in Committee. In such cases, it may well be entirely appropriate to transfer the assets of the old association across to the new one but, in other cases, it may not be appropriate to create a new association—if, for example, commoning activities ceased. In such a case, it is more likely that the property belonging to the association would be distributed among the participants of the association, in accordance with some generally agreed formula. Of course, that would happen only after the liabilities of the association had been settled.
	All the property of the association would not be transferred automatically to Natural England or some central government body as with liquidation of a company, those who had invested in the organisation would have a claim on any assets when it was wound up. The advantage of Clause 37, as we see it, is that it allows assets and liabilities to be transferred to a new association, if appropriate; to an existing commons association, if appropriate; or to any other person or body. We do not want to constrain that power, because it may be difficult to find an association willing to take on the assets, liabilities and responsibilities in question. There may be no neighbouring association established in the area and no prospect of an association being established in future. That is why we want maximum flexibility to transfer assets as best makes sense in all circumstances. That is why, although we absolutely appreciate the point behind the amendment, we cannot accept it and I invite the noble Duke to withdraw it.

The Duke of Montrose: My Lords, of course we are disappointed by the Minister's response. What he said raised another question in my mind which perhaps I should have thought of before. What happens if a commons association goes bankrupt and the members decide that they do not want to disband? Who has the power to collect money from whom? The commons association will have no assets as such. The Government could step in and ask Natural England to pick up the tab, but such associations could continue for a period in debt. I suppose the main thing against them would be that no one would lend them any more money, but they could continue indefinitely in a state of debt, refusing to be wound up. There are always difficulties that one has not quite foreseen. This one is a stage further than the discussion that the Minister put before the House a few minutes ago.

Lord Bach: My Lords, the noble Duke poses an interesting question. He may not have thought of it before; I certainly had not. It is best that I write to the noble Lord on that suggestion.

The Duke of Montrose: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 38 [Prohibition on works without consent]:

Baroness Byford: moved Amendment No. 46:
	Page 21, line 29, after first "or" insert "materially"

Baroness Byford: My Lords, in moving Amendment No. 46, I shall speak also to Amendments Nos. 47 and 48 in the group. It is important that Part 3, particularly Clause 38, is tightly and correctly drawn so that it benefits everyone; whether they are people who want to access and to use the countryside as they do now or more than before or those who have to cope with land management of the commons. In Committee we had a lengthy debate about works on common land. My noble friend Lord Peel and the noble Lords, Lord Livsey and Lord Greaves, recognised the need for clarification in this part of the Bill. The Minister stated that the Government had tried to strike a balance, although he dismissed inserting the word "materially" out of hand. He did not care for it. In the mean time, I hope that he has thought more about it. I think that my trouble is that perhaps I am becoming too reasonable in this day and age, but there we are.
	In the light of what I shall say, I want the Government to consider inserting the word "materially" again because it is enormously important. In Grand Committee the Minister said:
	"The present construction of the clause is almost identical to the current provision made in Section 194(1) of the Law of Property Act 1925.—[Official Report, 14/11/05; col. GC 247.]
	I do not doubt that—I am sure that is correct—but one must remember that in 1925 there was no right of access, which obviously has now kicked into action following the CROW Act 2005.
	I should like to thank the Minister for his follow-up letter dated 24 November, but he did not refer to the creation of the CROW Act. As I have raised the matter again today, and it was not resolved in his letter, will the Minister consider again the reasons why I am putting these amendments forward? They are important and need to be determined. They operate together to try to bring a de minimus effect into the provisions of Clause 38, Prohibition on works without consent.
	The object is to restrict the definition of restricted works which materially impede access. To make that more acceptable and workable, we have created a new category for fencing by introducing it in Clause 38(2)(c) so that it is separated from works which prevent or impede access so as to create, in effect, an absolute prohibition and to take away the argument that it would be difficult to find whether fencing in practice impedes access in a particular case. The argument that the noble Lord made when he dealt with these provisions was that the wording simply reflected the provisions in the old law, which is why I raise this again.
	In Committee, my noble friend Lord Peel spoke of the need for fencing and ditching, and the construction of ponds and grouse butts—I could think of many other ideas—which may slightly impede, but technically do not impede, access in the way that some people might view this part of the Bill. We are trying to ensure that moors, particularly grouse moors, and, in general terms, whole commons, can be managed properly and successfully. We seek to minimise any potential acrimony which might be raised if this provision is not correct between those who access land as users, for whatever reason, and land managers. I beg to move.

Earl Peel: My Lords, I wholeheartedly support my noble friend's amendments and I shall address my brief remarks principally to Amendment No. 46. The amendment is more than desirable if this part of the Bill is not to result in potential acrimony and confusion. As I said in Committee, common land is no different from any other type of land in that it requires positive management in order to achieve its objectives, whatever they may be. They could be agricultural, for sporting purposes or for nature conservation. More often than not the three are rather effectively intertwined. I would not like to speak for Wales but we should remember that most commons in England have been designated as sites of special scientific interest and are therefore subject to management plans agreed with English Nature as it is now, and Natural England as it is to become.
	As my noble friend Lady Byford has pointed out, essential management activities inevitably result in some disruption to the land. The construction of grouse butts or scrapes on Dartmoor common for the benefit of green plover, the opening of ditches and the maintenance of watercourses are relatively trivial issues, but if we are to avoid vexatious and expensive cases being brought against those responsible for carrying out such management tasks, in my view a sense of proportion must be brought into the equation. The Government argue that the restrictions imposed simply reflect the provisions set out in Section 124 of the Law of Property Act 1925, but my noble friend Lady Byford was quite right to point out that in those days we were talking about grazing animals. Now we have a completely different situation. The right to roam is in place under the CROW Act so that these activities may now affect people. Imposing restrictions on people's access could be looked at very differently from the imposition of restrictions on a grazier to implement his rights of pasture on a common.
	I appreciate that the word "materially" does not in itself lead to a clear and explicit definition, but to "impede" something is an absolute term. Even if the works are of a truly trivial nature, as I have tried to describe to noble Lords, they could still technically interfere with a person's right to exercise his access. There must be room in the Bill to introduce a degree of common sense. This amendment would provide a sensible solution that would allow the courts to maintain some proportion in this area.
	I turn briefly to Amendments Nos. 47 and 48. I can see the good intentions behind them. They would elevate fencing into the category of restricted works in recognition of the fact that it is usually the most contentious issue when it comes to obstructions on common land.
	I hope that the Minister will accept the amendment. It is essential to ensure that co-operation that we have seen on all sides should continue in this area. Given that we have reached agreement on so many aspects of the Bill, I should point out that this is our last sticking point. If there is some way of resolving it sensibly, the whole House would be extremely grateful.

Lord Jopling: My Lords, I should like to add a few words to those of my two noble friends. I agree with everything they have said and I warmly support the amendment. However, I add my support for another reason which has not been mentioned in this debate, although I realise that it may have been discussed in Grand Committee. I am afraid that I was abroad for much of that period and therefore was not able to attend the sittings regularly.
	Over the many years that I represented a large part of the Lake District and the Yorkshire Dales, I would travel to and from my home and around my constituency over a lot of unfenced common land. Every year my heart bled when going past dead lambs and dead sheep, which had been run over because they did not understand what a road meant. I remember thinking, "If only it were possible to erect simple fencing to keep livestock on the pastures and commons rather than wandering about on the roads". I do not know what the figures are, but years ago, when I was involved with the National Farmers Union, I remember seeing the most appalling figures on the amount of livestock—lambs in particular—which had been killed through being hit by passing traffic. If the amendment will make it slightly easier to erect fencing to protect lambs from this annual carnage, that is another very good reason to support it.

Lord Williams of Elvel: My Lords, I have a certain sympathy with what the noble Earl, Lord Peel, and the noble Baroness, Lady Byford, are saying. Speaking for Welsh commons rather than English commons, there are occasions when, in order to round up sheep, hill farmers need to go out to erect a sheep pen and then take it down again. Where I am doubtful about the amendment is the meaning of "materially", and I would have a genuine problem if my noble friend wished to accept it.

Lord Greaves: My Lords, in moving her amendment the noble Baroness said that in 1925 there were no rights of access. That is not technically true. The Law of Property Act 1925 gave rights of access over urban commons, many of which—especially in the north of England—were very far from urban. But that is only a partial correction, which I hope she will accept.
	We had an interesting discussion about this whole question in Grand Committee. I do not think that we bottomed it properly then and I do not think we are doing so today. The Government need to think a little more carefully about this issue before the Bill finally gains Royal Assent.
	There are two parts to the amendment—one relating to fencing and one relating to the word "materially". I shall deal first with the question of the word "materially". At the moment, subsection (2) defines "restricted works"—that is to say, works which have to have consent; there is a prohibition on such works without consent—and paragraph (a) refers to,
	"works which have the effect of preventing or impeding access to or over any land to which this section applies".
	Quite clearly, any works which stop people accessing common to which they have a right of access through the CROW Act or any other legislation are to be included in the category of works which require consent.
	I understand the points made by the noble Earl, Lord Peel, but my concern relates to the words "preventing or impeding access". Can the Minister tell the House what is the difference between "preventing" and "impeding" and why two words are used instead of one? The more I think about the word "impeding" the more I do not understand exactly what it means.
	I am thinking of situations on the ground, as was the noble Earl. If people need to dig a ditch, for example, to enable sensible management of the land, wherever the ditch goes it will prevent people walking from one place to another unless, depending on how big it is, they jump over the ditch, swim across it or clamber down and clamber up again. So it will prevent or impede their access in that sense. But if a plank bridge is put across it in a sensible place, the ditch will not materially impede their access because all they will have to do is walk a few yards one way, cross the ditch and walk a few yards back on the other side.
	It is clearly practical and sensible that people should be able to carry out minor works to do with managing a piece of moorland or fallow land—particularly moorland, where ditches are concerned—without having to apply to Natural England. As I understand it, Clause 38 says that if you want to dig a couple of entirely sensible drainage ditches on a common, you cannot do it without going through the procedure of applying to Natural England. If you want to carry out substantial works on a common, it is sensible that you should have to apply. But if the provision applies to minor works such as the noble Earl mentioned, it will put in place bureaucratic barriers which will not be sensible when a commons association is managing a common. There is a concern here. "Materially" may not be the word; I should have put "significantly", although I am not sure that that is right either. There is a de minimis issue here of people being able to get on and do the things that are listed in Clause 38.
	The second point concerns fencing. I am not sure whether the amendment does what Conservative Members want it to do, or perhaps it does. As I understand it, the amendment would impose stricter rules for fencing than are provided for in the Bill. If they want to do that, I will support them, although I can see circumstances in which de minimis fencing—or temporary fencing, if it is a question of controlling and managing stock—might be sensible. But if the Conservatives are saying that restricted works should include fencing per se rather than only fencing which has,
	"the effect of preventing or impeding access to or over any land",
	I would support them, and welcome them to the side of the angels for once.
	The basic points put forward by the noble Baroness and the noble Earl are important. We want a regime that prevents people doing things on commons that stop others getting sensible access to any part of the common to which they can get access. We do not want to force commoners, owners, commons associations or anyone else to go through intricate bureaucratic processes to carry out minor works which are sensible for the management of the common.

Lord Livsey of Talgarth: My Lords, I am grateful to those who have spoken in this short debate. I agree with my noble friend Lord Greaves that the movement of the words "the erection of fencing" from subsection (3)(a) to what would be subsection (2)(c) poses a question which I hope those who tabled the amendment can clarify. However, the general thrust of the amendment is to be welcomed. The appropriate national authority would not have to get involved unless the works proposed for the common were substantial.
	Amendment No. 46 would insert the word "materially". I have no inhibitions about that word and think it improves the Bill. It would ensure that minor works are allowed. I was a farm manager on an estate in Scotland which had a grouse shoot. We had very strict rules about the number of ewes we could keep to ensure there was enough cover. There are many small things that need doing to improve the environment and to have to go to the appropriate national authority for permission all the time is over the top. There is no question about that. These works are often needed to improve the biodiversity of the commons. Where we are trying to establish the grouse living in the Black Mountains area, which is becoming more successful, the spin-off for other wild birds is considerable.
	The whole question of fencing in Amendment No. 47 relates to the extent of the fencing and for what purpose. One can envisage small enclosures for temporary gathering of livestock, which can be very important for animal welfare. I am sure that the fencing would not block access except in extreme circumstances, such as foot and mouth. Defra was involved in the last outbreak and insisted that fencing was erected to divide hefts between different hills of sheep to avoid the spread of the disease. In some circumstances fencing is necessary on common land to avoid the sort of matters to which the noble Lord, Lord Jopling, referred. Certainly, in the Brecon Beacons in the days of the Welsh Office, there was an agreement, because of the carnage of sheep being killed, for the main road between north and south Wales to be fenced on both sides. Access to rights of way was not impeded, but improved. Many more people now go to the Beacons through these access points than previously. We can see the evidence of that every weekend. However, that was a special circumstance.
	Amendments Nos. 46, 47 and 48 do not seek completely to fence off an area or impede access. Management of conservation or routine livestock operations might be affected if the appropriate national authority were involved in making slow decisions because it would take a lot longer to achieve what are often routine operations. I support the amendments.

The Earl of Caithness: My Lords, notwithstanding my personal views about statutory commons associations but putting on my surveyor hat, if we are to have them they need to work as practically and sensibly as possible. That is what we are aiming for in this part of the Bill. As my noble friend Lord Peel said, this is the crux of how the legislation will work.
	We are living in an increasingly litigious society. Not so long ago, I came out of hospital and was approached by a man who I stopped to talk to and he said, "You know you can sue if any of these things have happened". I thought what a sad world we had come to if such people stand outside the gates of hospitals. There are extremists at every end of the pendulum. When I was responsible for the countryside as a Minister, I remember saying to a member of the Ramblers Association, "You would not mind one bit if the countryside was completely concreted over as long as you had a full right of access to every single bit of it". I can see this matter being a particularly troublesome area.
	An owner or the commons association could do something that is necessary for the good management of the common, which is probably in line with a management agreement. That could lead to frivolous litigious action, which would be very good for the Minister's previous profession who would rub their hands at the thought of getting more fees. Sadly, I can see this matter going to those sorts of extremes and surely that is exactly what we need to avoid. Therefore, I support the amendment moved by my noble friend Lady Byford to insert "materially". If the Minister does not like "materially", he should consider the weight of opinion that has come from all sides of the House, including his own, on this issue. This part of the Bill is not yet right. I know that he would like to get it right and we would like to get it right. I am sure that he will want to reconsider to see how the clause can be adjusted so that we do not have problems in the future.

Lord Bach: My Lords, I thank noble Lords for an interesting debate on Part 3, which is an important part of the Bill. Amendment No. 46 proposes the insertion of the word "materially" into Clause 38, and provides that only works that are a material impediment to access, together with those that prevent access, are covered by the controls on works. Amendment No. 47 provides that fencing would be a type of work that would always need the consent of the authority, as the amendment removes the test that the fence must prevent or impede access. Amendment No. 48 is consequential to Amendment No. 47.
	These amendments touch on the question of how we ensure that the controls on works cover only those works which prevent or impede access, and do not extend to works that do not. As a consequence, I understand precisely what the amendment is trying to achieve, and I agree that it is in everyone's interests for there to be clarity on the question of the works covered by the controls. It is certainly a different and better group of amendments than was tabled in Committee, and we certainly see no objection to part of it. Amendment No. 47 clarifies fencing as a type of works that should be covered by the controls in all circumstances. But we still have difficulty with the introduction of the word "materially", even if only in relation to works that impede access.
	This seems an appropriate moment to break off to answer the noble Lord, Lord Greaves, who asked about the difference between "prevent" and "impede". A continuous fence around a common would prevent access, while a ditch or embankment would impede access. These are words that have been used for many years, as the noble Lord knows, and have not really caused problems. In shorthand, "prevent" means "stopping altogether", while "impeding" means "obstructing" and perhaps "stopping temporarily". There is a real difference between the two words.
	There is a raft of types of work that fall into the category of impeding, rather than preventing, access—for example, ditches, embankments, bollards and railings. It seems to us that the amendment might send misleading signals to those undertaking such works and as a result might encourage some works with a very significant impact on access being undertaken without consent. I do not want to repeat everything I said in Committee, but works that present no impediment to able-bodied people might impede the disabled. Other works might impede horse riders, those exercising common rights and, dare I say it, those who are lawfully allowed to drive on commons. The present construction of the clause ensures that all those issues are considered and do not get overlooked.
	I listened with great care to the points made by all noble Lords, but I shall refer particularly to the points made by the noble Earl, Lord Peel, during Committee. We share his view that common land needs to be managed effectively—we all share that view—and that works necessary for the proper management of the land that do not prevent or impede access to it should not be subject to these controls. The difference between us seems to be that the noble Earl believes that Clause 38 somehow changes the position in respect of the type of works covered by the controls, and goes further than previous provisions contained in the now famous Section 194 of the Law of Property Act 1925. While I accept entirely that the area of land to which the controls apply is modestly different, because Clause 38 applies to all registered common land, not only to land subject to rights of common way back in 1926, I do not believe that Clause 38 introduces any significant changes to the types of works covered by the controls. If there was some misunderstanding about the nature of the controls contained in the 1925 Act at the time, that is unfortunate, but we cannot allow that to dictate our decisions now.
	It may help the noble Lord if I explain that most of the works with which he is concerned do not in our view constitute works that would prevent or impede access. I wish to put that on the record. I will boldly assert that setting Larsen traps or crow traps does not fall within scope. Similarly, I cannot see that a scrape for lapwings is the type of works that would be caught by the controls in Clause 38. I would go so far as to say that constructing a small shooting butt on a very large common is also so slight in its context that, if it does impede access, it is likely to fall outside a de minimis test which the courts would employ in deciding whether to enforce against any breach of Clause 38.
	I emphasise that the reference to ditches, trenches and embankments in Clause 38(3)(c) is intended to add clarity, to make it clear that these are the types of works that may prevent or impede access. The Bill does not provide that all such works prevent or impede access: that will be a question of fact in each case. The maintenance of such structures—for example, the clearing of ditches—would not in my view be caught by the controls.
	The noble Earl, Lord Caithness, talked about frivolous challenges. We have heard that the controls in Clause 38 will be enforced more assiduously than before because Clause 41 enables anyone to go to court to enforce them. It has been suggested that this will lead to enforcement by members of the public or organisations in frivolous or vexatious cases. I do not accept that. First, experience shows that people rarely bring actions in court, even though they may have the power to do so. Court action still tends to be a matter of last resort. Secondly, the courts know very well how to deal with litigants who bring actions in respect of trivial matters. They may refuse to grant the order, or they may decline to award costs to the applicant, or they may adjourn consideration of the matter to give the respondent time to apply for consent for the works in question.
	We are told that actions will be brought to abate minor features such as shooting butts. That would be surprising to say the least. Even if they fall within the controls, we think that amenity organisations will have bigger fish to fry than such matters; unlawful fencing and buildings on common land are far more likely to be the target of action.
	As I have said, the scope of these controls differs very little from those contained in Section 194 of the Law of Property Act 1925. I do not accept the argument that we should move the goalposts in this Bill because people were previously able to undertake unlawful works without fear of enforcement. The noble Baroness referred to the letter I sent to noble Lords. I thank her for her kind comments about it. I wish to quote part of it that is relevant to this debate, which states:
	"I would like to clarify a misunderstanding about access. The Law of Property Act 1925 itself (in Section 193) introduced a public right of access to certain urban commons and manorial waste, with the option for landowners of granting access by deed over other common land; a right of access to other commons may also have existed under Schemes of Management made under the Commons Act 1899. De facto access was also available on many other commons. Our understanding is that section 194 was enacted as a political compromise"—
	they did it even then—
	"specifically to ensure that de facto access to rural commons (not otherwise subject to rights of access) was preserved by regulating the powers of the landowner to erect fencing or other physical impediments to that access, notwithstanding the absence of any legal right to enter on the common. Introduction of a right of access via the Countryside and Rights of Way Act 2000 has only changed the position inasmuch as the public have a legal right of access to a far greater area of land".
	Our case is that Section 194 was, even then, about protecting de facto access.
	However, we have also conferred on the national authority in Clause 43 a power to exempt works from the controls. That will enable us to introduce, if necessary, greater clarity where there is real uncertainty. I cannot give an assurance that we shall make orders to exempt any particular works—we shall come to that discussion a little later—but I certainly intend to consider the scope for exemption orders as part of our programme for implementing the Bill and bringing into force the provisions of Part 3.
	I hope my comments will, at least to some extent, allay noble Lords' concerns about minor works. In the light of those comments—I have chosen my words carefully for the record—I ask that these amendments be withdrawn.

Earl Peel: My Lords, on a point of clarification, I fully understand the point that the Minister made about the disabled. However, he also mentioned people on horses. The latter are restricted to bridleways only; they would not have access to common land.

Lord Bach: My Lords, I am grateful for that.

Baroness Byford: My Lords, I am very grateful for the many contributions to this important debate. My noble friend Lord Caithness was right to raise the whole question of litigation. The fact that the incidence of litigation is increasing on the part of people in every walk of life is something of which we are not proud; it is a sad reflection on our times. I would hate to think that in 10 years' time we shall say to the noble Lord, "We told you so". That would not bring us great joy. I hope that the noble Lord considers that I am genuine in those remarks.
	My noble friend Lord Jopling described the difficulty that arises when animals, particularly sheep and lambs, stray on to the roadside. The noble Lord, Lord Livsey, spoke of a place where that problem was so great that people were required to fence off the relevant land. That is not a new problem.
	I say to the noble Lord, Lord Greaves, that we tried to produce an amendment which we considered would help in practice and would be acceptable. It constitutes a halfway house and would be less restrictive than the measure in the Bill. We are anxious to ensure that where people have a genuine right of access to common land—in some places that has not been possible before—they should be able to access it and feel confident that they will not experience difficulties due to works being carried out on the relevant land. I hope that answers the question posed by the noble Lord. There is no doubt that we all wish to ensure that the measure works.
	I am grateful to the noble Lord, Lord Williams of Elvel, for his half-support for the word "material", although he and I both accept that that may not be the right word. I am not wedded to it, but I am disappointed that the Government have not made any other suggestion to lessen the bureaucratic way in which the measure will operate. I believe that on Monday the noble Lord, Lord Bach, launched deregulation, or less regulation, for farmers, yet here we are passing still more legislation—

Lord Bach: Not deregulation, my Lords, but better regulation.

Baroness Byford: My Lords, deregulation would be even better than better regulation, but that is another matter. I have not read the noble Lord's speech in full but I shall certainly do so. There is a serious problem with the current situation. I am grateful to the noble Lord for quoting again from his letter. I believe that he referred to an 1899 Act that applied to urban commons. However, in those days it was considered a mild march to travel five miles up the road to gain access to a common. Nowadays people are mobile, and those who are lucky enough to be able to do so can gain access to areas of the country they would never have dreamt of visiting in the past. We should introduce legislation that is relevant for today and for the future, rather than thinking about the past. I am slightly disappointed that on this occasion the noble Lord did not even try to meet us halfway.
	Disabled access was mentioned. We shall debate that matter on the NERC Bill. I refer to the issue of 4x4s in connection with that Bill.
	Clearly, there are disabled people who need to have access to be able to enjoy some parts of the countryside that they would not otherwise be able to enjoy; so there is a longer-term question.
	As I said earlier, the original Act was based on urban commons, and it was intended to make a far greater area of the land available to people as time went by. It is not relevant to us today. It is with a very heavy heart that I say to the Minister that he has not answered us. If we are not lucky enough tonight to win the Division, which I feel I must call, I hope that between now and when the Bill passes through another place the Government will give greater consideration to what I think is the crux of the Bill. I am disappointed with the noble Lord's response, and I beg leave to take the opinion of the House.

On Question, Whether the said amendment (No. 46) shall be agreed to?
	Their Lordships divided: Contents, 98; Not-Contents, 137.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 47 and 48 not moved.]

Lord Bach: moved Amendment No. 49:
	Page 22, line 6, at end insert—
	"(c) land not falling within paragraph (a) or (b) which is in the New Forest and is subject to rights of common"

Lord Bach: My Lords, we come to a group in which there are a number of government amendments and two opposition amendments, Amendments Nos. 50 and 52. If it is agreeable to the House, I will speak to the government amendments at this stage and come back on the other amendments, which are important.
	Government Amendments Nos. 49 and 81 are made at the request of the authorities in the New Forest. Controls on certain limited works in the Forest are contained in local legislation. As these works are dealt with in local Acts, they will be exempt from the requirement for consent under Section 194. However, for any works in the New Forest that are not permitted by local Acts, Section 194 applies at present as for any other land, subject to rights of common. The controls in Clause 38 apply only to registered common land and to certain land exempt from registration. As originally drafted, therefore, Clause 38 would not apply in the New Forest. Although we were initially led to believe that the authorities in the New Forest were content with that, after further consideration the Verderers of the New Forest have asked that the safety net provided by Section 194 should be reinstated by applying Clause 38 to the Forest in the same way. Amendment No. 49 does that, and Amendment No. 81 ensures that the controls apply to National Trust land in the New Forest.
	I shall deal with government Amendments Nos. 51 and 82 next. At the request of the Quarry Products Association, we propose to extend slightly the exemption from the requirement for consent to mineral workings that have planning permission at the time that the Bill becomes law. Amendment No. 82 provides that the exemption will also apply where an existing permission is varied by an extension of the time limit to which the permission is subject. Because it is a transitional measure, we have also moved it into Schedule 3. That necessitates the removal of Clause 38(6)(e), which is achieved via Amendment No. 51.
	In agreeing to that change, we have not resiled from the basic principle that new minerals workings that prevent or impede access on common land should in future require the consent of the national authority under Clause 38. But we recognise that there may be circumstances in which the time for the completion of works relating to an existing planning permission may be varied, and we accept that imposing the need for an additional consent at that point would not be appropriate. We also believe it is in the interests of common land that such existing permissions, which I understand often contain provisions for the restoration of the land, should be able to be completed where the change relates solely to the time taken for completion of the development.
	Government Amendments Nos. 53 and 54 are technical amendments to Clause 38(8) to ensure that paragraph (b) does not exempt works from the controls in a way that was not intended. The amendments ensure that the exemption under Clause 38(6)(b) applies only where the enactment referred to applies generally to common land, and not to a specific common. It ensures there is no overlap or confusion with the exemption in Clause 38(6)(a), which applies to specific commons.
	Government Amendment No. 73 is a consequential amendment to make Clause 51 consistent with Clause 38. I beg to move.

Lord Boston of Faversham: My Lords, in view of the groupings and the fact that the Minister has spoken to Amendment No. 51 I must point out that, if Amendment No. 51 is agreed, I cannot call Amendment No. 52.

The Duke of Montrose: My Lords, I shall speak to our two amendments grouped with Amendment No. 49. Our Amendment No. 50 is mainly a probing amendment, in that it deals with electronic communication apparatus. The Minister clarified that such apparatus,
	"for the purposes of an electronic communications code network",
	means basically a phone mast. There is a great deal of opposition to such things, especially in areas of natural beauty. Does the exemption from the requirement to obtain national authority permission to build them on common land mean that they can circumvent the planning system?
	On our Amendment No. 52, we are back on the question of quarrying. The methods used in quarrying differ according to conditions, quantities and so on. The controls on noise and nuisance also vary from place to place and time to time. Some of our common land is very beautiful and attracts tourists, holidaymakers and others whose spending is important to the rural community. Where extraction has not begun, the national authority—if it is even-handed—should wish to ensure that the methods are appropriate to the location. Obviously if a site is well under way and the operating conditions are understood by all, there is no imperative to start changing things and probably bump up the cost. However, if the work has commenced in only the past few months or not yet at all, the national authority should be able to call the plans in.
	I shall deal with the government amendments. It is interesting to hear what the noble Lord has to say on the exercise of powers in the New Forest; we are all very much in awe of the venerable association of Verderers of the New Forest and its ways. This is the only point at which the Bill will affect the New Forest. As the association has not written to the rest of us with complaints, I presume that the Government have got it just about the way that the association wants it. There was a bit of a belt-and-braces situation in government Amendment No. 55, and it is a little difficult to see anyone arguing that it would affect the requirement to get other people's consent. The meaning is perfectly plain when "arising" is removed.

Lord Livsey of Talgarth: My Lords, we look on many of the amendments as extremely helpful. I agree with the noble Duke about the verderers. Clearly the Minister is well informed; we too assume that correct decisions have been made so far as the clause is concerned.
	Amendment No. 50 addresses the vexed question of installations of electronic communications for the purposes of an electronic code network. That is problematic, and it would be interesting to hear the Minister's views on whether the amendment is the right way to go about it. So far as I am concerned, the jury is out on the matter, and we want to listen to more contributions.
	Government Amendments Nos. 51 and 52, which concern minerals, seem very reasonable. After "apply", government Amendment No. 53 inserts "(generally)". Why? What other land are the Government thinking of in that context? The other amendments make sense as well, so I do not want to prolong the proceedings of the House. This raft of amendments is quite constructive.

Lord Greaves: My Lords, I have one or two questions about government Amendments Nos. 51 and 82. I do not understand why this matter is being moved from one bit of the Bill to another, but I do not suppose that it has great significance. If it has, perhaps the Minister can tell us.
	The prohibition on mineral works currently set out in Clause 38 has been changed only in one respect as far as I can see. Paragraph (a) in Amendment No. 82 is no different; and I do not think that paragraph (b) is different given that the period allowed for the works to be carried out is part of the planning permission. I think that that would be covered by the part of Clause 38 that the Government wish to remove and replace by their amendments. So the only difference seems to be the words,
	"subject to any extension of time granted before or after the commencement of that section".
	I can understand why the works might be subject to an extension of time granted before the commencement of that provision since that, rightly or wrongly, will be part of the existing planning permission. What is really being said is that if after the Bill has been enacted there is existing planning permission for mineral working on a common and the developer, owner or whoever applies for an extension of the time granted within which those works should be carried out, that would still not require planning permission. It does not seem obvious why that should be the case. As any new permissions for mineral extraction will require specific permission from Natural England, it is not clear why an extension of time for an existing permission should not be subject to similar permission. As I understand it, given that the planning permission cannot be carried out unless that extension of time is granted, and an application for that will have to be made, it will be subject to all the normal planning procedures.
	I have read the Bill without any specific examples in mind of commons where that might apply, and it may well be that in the real world it will not make any difference either way. However, I can see circumstances in which mineral workings on a common might be extremely controversial and harmful to that common, yet permission might have already been granted, perhaps in the distant past, for that to be extended. Will the Minister explain why such circumstances should not be caught by these provisions?

Lord Bach: My Lords, I am grateful to noble Lords who have spoken. Perhaps I may deal first with Amendment No. 50, which I know is a probing amendment. We believe that it is appropriate to maintain the exemption and I shall try to explain why. We must focus on what the controls on works are intended to achieve. Clause 38 is concerned with works that prevent or impede access to the common and which, as a consequence, might adversely affect the common and the purpose for which the land is used. Clause 38 is not a means of introducing a consent requirement for works which some may consider anti-social or inappropriate. If the existing consent regime for such works is considered to be deficient, that does not mean that it would be appropriate to introduce controls via Clause 38, which apply to a relatively small proportion of the land in the country. About 4 per cent of the land surface of England and Wales is made up of common land, and so these controls would not apply to 96 per cent of the land and would not offer protection from any dangers that there might be.
	The exemption is sensible to deal with the frequent need to erect telephone lines, junction boxes and the like on common land to provide a service to neighbouring properties. We know that the exemption is longstanding; it has existed in respect of communications equipment for over 80 years and we are not aware of evidence that any problems on commons have arisen as a result. It is consistent with our aim and, I suspect, the aim of the House to help create the most dynamic and competitive communications industry in the world which ensures universal access to a choice of diverse services of the highest quality and that citizens and consumers are protected. That objective needs to be balanced in an appropriate manner with others, such as limiting environmental impact and addressing public concern over new developments. However, our judgment is that controls within the planning system are the best way of achieving that.
	The noble Duke asked, pertinently, whether these matters were covered by planning law, too. The answer is that in certain circumstances—relating to phone masts, for example—consent under Clause 38 would not circumvent the need for planning controls. Consent would be needed under both, if appropriate. So the planning laws do not go out of the window automatically just because the works are covered by this Bill.
	The noble Lord, Lord Greaves, has put me on my mettle regarding government Amendment No. 51. He asked why this matter is being moved to Schedule 3. The answer is, "Because it is absolutely a transitional amendment". The time for it would run out after a period and so the appropriate place for it in the Bill is in Schedule 3. The noble Lord will know that planning permission needs to be extended by time to allow completion of works. The justification for Amendment No. 51 is that it is only an extension of time; it will not allow extended planning permissions for any other purposes—for example, if the area covered by the works is also extended. The amendment would also enable existing permissions to be completed, and often the restoration of the land would be part of that process. So this is a tidying-up exercise in the sense that there is already an exemption from the requirement for consent to mineral workings which have planning permission at the time that the Bill becomes law. Amendment 51 has the effect of extending that slightly when existing permission is varied by extension of the time limit to which the permission is subject. We think that that is a fair way to proceed in this instance.

On Question, amendment agreed to.
	[Amendment No. 50 not moved.]

Lord Bach: moved Amendment No. 51:
	Page 22, line 19, leave out paragraph (e).
	On Question, amendment agreed to.
	[Amendment No. 52 not moved.]

Lord Bach: moved Amendments Nos. 53 and 54:
	Page 22, line 30, after "apply" insert "(generally)"
	Page 22, line 33, leave out "a" and insert "any"
	On Question, amendments agreed to.

Baroness Farrington of Ribbleton: moved Amendment No. 55:
	Page 22, line 36, leave out "arising"

Baroness Farrington of Ribbleton: My Lords, this is a minor, technical amendment to Clause 38(9) that would remove "arising", which we now consider to be an unnecessary word. It adds nothing to the meaning of this subsection and its removal does not change the meaning or effect of the subsection. I beg to move.

Baroness Byford: My Lords, I have two amendments in this group. Although I did not object to the Government removing the little word "arising", I did smile a little. I thought that if the little word "arising" could be taken out, perhaps the little word "material" could be put in elsewhere, but that is another matter.
	I shall speak to Amendments Nos. 56 and 57. Amendment No. 56 is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works—

Lord Bach: My Lords, I am so sorry to interrupt the noble Baroness but we thought that Amendment No. 55 had been degrouped from Amendments Nos. 56 and 57. I think that the noble Baroness will be able to move her amendments very shortly.

On Question, amendment agreed to.
	Clause 39 [Consent: general]:

Baroness Byford: moved Amendment No. 56:
	Page 23, line 21, leave out subsection (6).

Baroness Byford: My goodness, I am too keen, my Lords. I apologise; I was working from a previous groupings list and that is my fault. In moving Amendment No. 56, I shall speak also to Amendment No. 57, which is grouped with it.
	As I said, this is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works that have been commenced or completed by now. As I read it, the wording in the Bill does not make that clear and could be construed as meaning that anyone may, at any time in the future, begin restricted works and then apply for consent. I am sure that that is not what is intended but I am seeking clarification. A cut-off date of 28 June 2005 would mean that anything which had not been commenced by then would have to go down the consent route. It would also mean that there would be no sudden rush of activity to try to avoid having to apply. I am simply seeking clarification.
	Amendment No. 57 would insert an additional provision intended to prevent application to the court by members of the public in respect of works carried out before the Bill was laid. It seems to us particularly unfair for retrospective effect to be granted at the behest of anyone who is offended. However, the amendment would widen the power of particular authorities to bring proceedings by including all "relevant authorities" and not just the local authorities described in Section 194 of the Law of Property Act 1925. I beg to move.

Earl Peel: My Lords, I support my noble friend's amendments—particularly Amendment No. 57. My noble friend talked about retrospective cases that might be brought by the relevant authorities. Of course, that could be extended to the present. It is now extended to include the general public, and we go back to the whole question of vexatious legislation. I certainly do not wish to go through that again, but I suggest to your Lordships that if anything seriously untoward had taken place before the date mentioned in my noble friend's amendment—that is, June 2005—surely the relevant authorities would already have had the opportunity to take action. In Committee, when we debated the possibility of reopening the whole question of registers, the Minister said, "Let sleeping dogs lie". I suggest to the Minister that perhaps he might take a similar approach in this instance.
	I feel strongly that every effort should be made to reduce conflict between the access providers and the access users, as my noble friend said when she spoke to other amendments. I think that this would be a small but important example where that concept could be implemented and so I very much hope that the Minister can take a magnanimous view in this case.

Lord Bach: My Lords, Amendment No. 56 would remove the provisions that enable a national authority to consider an application for consent to undertake works under Clause 38 in circumstances where the works have been started or completed. The noble Duke, the Duke of Montrose, tabled an equivalent amendment in Committee. I gave an explanation then as to why we did not think it appropriate. That obviously did not satisfy him and his colleagues and I hope that I can do a little better this time.
	In our view, when works have been undertaken without the consent of the national authority under Clause 38, a sensible first step is to enable an application for such consent to be made. If no such application is submitted or if consent is refused, enforcement action can follow. This is not a transitional provision. Works undertaken while Section 194 was still in force could be the subject of an application under Clause 38 and that would then make them lawful.
	I should add that this provision does not take away any power that a landowner has to seek the removal of works undertaken without his consent, or any power that commoners have to seek the removal of works that adversely affect the exercise of their rights. The ability to consider a retrospective application relates only to the provisions of Clause 38.
	My officials currently accept applications in respect of works already started or completed, and I do not believe that that has caused any problems; nor am I aware that a specific power to accept a retrospective application is required but, to put the matter beyond doubt, we have included one in the Bill. I hope that that explains more clearly why we have taken the attitude that we have.
	I hope that the noble Baroness will be pleased with my attitude to her Amendment No. 57, which relates to the provisions in the Bill that amend Section 194 so that after the commencement of this Act any person would be able to take enforcement action against unlawful works undertaken while Section 194 was in force.
	We understand the point that the noble Baroness is making. We do not think that the enforcement provisions that we propose, and in particular the amendment to Section 194, is a retrospective provision in the true sense of the phrase, but we understand her concern. We are perhaps slightly moving the goalposts in respect of unlawful works undertaken before the Bill comes into force. Because of the way in which the noble Baroness and the noble Earl, Lord Peel, made their point, I am prepared to take this matter away for further consideration to see whether it is possible to come up with a suitable government amendment at Third Reading, but I make no promises.

Baroness Byford: My Lords, I am very grateful to the Minister—in particular, for his response to our Amendment No. 57. I thought that we had slightly persuaded him of our case in Committee, but no government amendments have been forthcoming and so we have returned to the issue. I am extremely grateful to him for agreeing to look at the matter again, although he is making no promises.
	Perhaps I may clarify his response to my Amendment No. 56. I am unsure about it and want to be certain. Is he saying that the provision applies in the past, present and future? From the wording in the Bill, which can be interpreted in any way, it is difficult to know whether that is the case and the Minister did not respond on that point. Do I gather from his nod that that is so?

Lord Bach: My Lords, it applies in the past, present and future.

Baroness Byford: My Lords, I am grateful for that clarification. I thank the Minister and am grateful to my noble friend for supporting my Amendment No. 57. I am even more delighted to hear that the Government will think about this issue, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 41 [Enforcement]:
	[Amendment No. 57 not moved.]

Lord Greaves: moved Amendment No. 57A:
	Page 24, line 12, at end insert—
	"( ) The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action against unauthorised works on common land.
	( ) Natural England and the Countryside Council for Wales shall from time to time report to the appropriate national authority on the operation and effectiveness of the powers to prevent unauthorised works on common land."

Lord Greaves: My Lords, Amendment No. 57A is the first amendment in this group. In case the noble Baroness and others are still working from old groupings lists, I had better make clear what is in this group. It starts with Amendment No. 57A, which I am moving, and includes Amendments Nos. 61A, 61B, 61C and 61D, which refer to a slightly later clause—Clause 45.
	I have tabled this amendment in order to respond as best as I can to what the Minister said in Grand Committee in reply to a series of rather different amendments which I moved at that time. I have tried to set out in my amendments what I understand the Minister said was the Government's intention regarding how the system would work in the future. At the same time, I have tried to strengthen slightly the provisions relating to local authorities taking action over unauthorised works on common land—unauthorised encroachment—and I have attempted to tackle the problem, which we discussed at some length in Grand Committee, of the failure of local authorities to take this area of work seriously over a long period of time. There is a general feeling that this is not an area of work in which local authorities are interested and they do not exercise their powers in this area very effectively.
	When this was discussed in Grand Committee, the Minister said that the Bill, particularly what is now Clause 45, sets out the powers of local authorities more clearly. I believe the noble Baroness responded to this point in Committee. The proposition put forward on behalf of the Government was that by setting out the powers of local authorities more clearly and making it easier for everyone to understand what their powers are in that respect, it is likely that they will make more use of those powers. That seems to me to be a sensible argument and one that will probably go some way towards what we all want, which is for local authorities to take their powers seriously on serious and important encroachment on commons. However, I do not believe it goes far enough. It would be useful to set further things out in the Bill.
	Amendment No. 57A is probably not in the right place in the Bill—it may not matter too much at this stage. I believe it would be better put with Clause 45. The bones of the amendment are that:
	"The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action against unauthorised works on common land".
	The Minister, when replying to a different amendment in Grand Committee, said that it was the intention of the Government to issue such guidance, and that that would be done in the future, although it had not been done for many years, and that that would assist local authorities in their work. That is very true. I suggest that it would be very helpful if the need for that guidance and the requirement on the Government to issue guidance could be put on the face of the Bill. At col. GC 276, the noble Baroness, Lady Farrington, said:
	"We will also wish to provide guidance to local authorities on the undertaking of their functions under this Bill and that will certainly include advice about the use of their powers under Clause 43".
	That clause is now Clause 45.
	"I am not aware that such advice has been provided in recent years and I hope that that will provide some reassurance to the noble Lord".—[Official Report, 14/11/05; col. GC 276.]
	I am partly reassured, but I am never fully reassured by Ministers who try to tell us what future governments will do or what their own government will do next year. The legislative procedures in this House and in the House of Commons are full of occasions when Ministers tell us that they intend to do something but they do not get around to it, perhaps because Ministers and circumstances change. I believe that there is great value in putting this on the face of the Bill.
	The second part of Amendment No. 57A is a useful addition, although not one for which I would die in a ditch. Natural England and the Countryside Council for Wales shall provide appropriate advice to the Secretary of State on the operation and effectiveness of the powers to prevent unauthorised works from time to time. I believe that that would be helpful. However, it is not crucial to what I am proposing.
	The rest of the amendments set out how local authorities would deal with complaints which I believe is crucial. In Grand Committee, I proposed that local authorities should have a duty to take action against all encroachment and it was suggested to me that that was inflexible, did not provide them with the opportunity to solve problems in other ways and, in particular, it meant that trivial complaints, if they were technically encroachments, would have to be acted upon. We discussed what might be minor encroachments such as erecting a sign saying "This is a common". I accept what the Government said on that. It was very sensible. It should not be a duty. However, it is sensible to set out on the face of the Bill more clearly the way in which local authorities should carry out their powers and should actively pursue the procedures. I accept what the Government said in Grand Committee and this amendment is my attempt to put on the face of the Bill what they said.
	The slightly complex amendments, Amendments Nos. 61A to 61D, if adopted, would have the following effect. Amendment No. 61B says that a local authority,
	"shall consider any report that it receives of unlawful interference in common land or a town or village green to which this section applies".
	Secondly, they may take any reasonable steps to protect the land against unlawful interference that could be taken by an owner in possession of the land. They have to consider it, but they will then exercise their proper judgment on whether to take action and on what action to take. Thirdly, they may institute proceedings, as already set out in Clause 45(2)(b). That adds clarity to the Bill and it would be an instruction to local authorities on how to act if they receive a complaint. It will provide them with all the flexibility that the noble Baroness said, quite rightly, they needed.
	My final point is that in Committee I suggested that the commons registration authorities should have that duty. The noble Baroness quite rightly pointed out to me that all local authorities have that power to take action and, therefore, the amendment that I am moving today refers to all local authorities and not simply to commons registration authorities. I am agreeing with what the Government told me in Grand Committee and asking them to set it out more clearly in the Bill so that local authorities have greater motivation and greater understanding of what they have to do. To do that under Amendment No. 57A, the Government will be under an obligation to provide them with appropriate guidance. That seems to me to be an entirely reasonable amendment and I look forward to the Minister's response.

The Duke of Montrose: My Lords, the noble Lord, Lord Greaves, is certainly bolder than we have been in trying to interpret what the Minister said in Committee in legislative form. We are dealing with the enforcement of consent to works and works that have been done without consent. Of course, the consent has to be given by the appropriate national authority. Clause 41 says,
	"any person may apply to the county court in whose area the land is situated".
	Presumably, that is the first route about which the Government were talking. Perhaps the noble Lord, Lord Greaves, through his amendment, was trying to emphasise that it concerns encroachment, but encroachment would almost certainly tend to include works of some kind. I wonder whether that is caught in the earlier phraseology in the Bill. Perhaps he is considering whether we can put some compulsion on the local authority to be the body that takes the objection.

Lord Livsey of Talgarth: My Lords, we agree with the amendments tabled by the noble Lord, Lord Greaves. They display his long experience in local government. To put these amendments on the face of the Bill would improve the Bill no end because they specify to local authorities precisely what their responsibilities are in this respect.

Baroness Farrington of Ribbleton: My Lords, perhaps I can begin by endorsing the tribute made by the noble Lord, Lord Livsey, to the long experience of the noble Lord, Lord Greaves, in local government. I declare an interest: we were both on Lancashire County Council for 20 years. We are not unused to having the odd friendly difference of opinion from time to time and agreeing at other times.
	I understand the concern of the noble Lord, Lord Greaves, that Ministers may come and go and that sometimes he fears that matters may not be followed up. Inevitably, there will need to be guidance circulated to local authorities on the Bill. So much in it affects the duties and powers of local authorities that we could not avoid giving guidance. I hope that that reassures the noble Lord.
	We envisage issuing a circular to local authorities about the implementation of the Bill. We agree that including guidance on the extent and use of their powers would be valuable and sensible and ensure that local authorities are encouraged to take their enforcement powers seriously. However, we do not consider it necessary or appropriate for a requirement for this to be prescribed in the Bill. It is essentially an administrative matter and Ministers have long adopted the convention of giving advice to local authorities in circulars. I am sure the noble Lord will agree that we have received many of these over the years. We are less convinced by the suggestion that Natural England and the Countryside Council for Wales should be required to report to the national authority on the operation and effectiveness of the enforcement regime.
	I note that the noble Lord, Lord Greaves, said that he was not prepared to die in the ditch for this part of his amendment. It could involve those bodies in a considerable amount of work, carrying out surveys of commons to identify potential problems. The enforcing role, which will in future be open to any person, should be sufficient to provide an appropriate level of protection against unlawful works at local level. If Natural England wishes to provide reports, Clause 3 of the Natural Environment and Rural Communities Bill would give Natural England powers to carry out research that supports its general purpose. Similar powers are available to the Countryside Council in Wales, so both bodies may in any case provide such reports as they think fit.
	On Amendments Nos. 61A to 61D, it will not surprise the noble Lord if I say that they do not strike quite the note we want in this part of the Bill. There are distinct elements to these amendments. The first would strengthen the requirement on all authorities to take enforcement action. The second would enhance the powers of management. On Amendment No. 61A, we do not see a duty on local authorities to enforce as desirable or appropriate and I am pleased that he recognised that. However, I draw his attention to the enforcement powers of local planning authorities. If they consider that unauthorised development is unacceptable on planning grounds, they have the power to take action but not a duty.
	As with planning enforcement, if the authority receives a complaint about encroachment on common land, the authority must consider that complaint. If the authority unreasonably fails to act—Amendment No. 61C focuses on what is reasonable—that matter can be taken up with the local authority's members or, ultimately, can be considered by the local ombudsman. Just as we do not believe that there should be a duty on planning authorities, we do not think it is reasonable to require local authorities to act against encroachments. That would be an unwarranted fetter on their discretion to act as they think fit and to determine their own local priorities.
	However, I accept the noble Lord's concern that conferring a power does not go far enough. That is why we have agreed to look at whether local access forums should be given guidance and further powers to offer advice on these matters to any local authority where an encroachment restricts public access. I would also remind the noble Lord that many local authorities are already under a duty to enforce against encroachments on common land where they have voluntarily entered into a scheme of management under the Commons Act 1899. The noble Lord may be pleased to know that there are more than 200 such schemes, most frequently relating to lowland commons, and in such cases the local authority has opted in to having a duty to enforce. We believe that that is the appropriate way.
	The noble Duke asked whether encroachment is the same as works. Not necessarily; encroachment is often just extending a private garden on to a common and does not necessarily involve works. If it does involve works which prevent or impede access, it would be caught by the controls.
	I hope that I have reassured the noble Lord, Lord Greaves, and that he feels able to withdraw his amendment.

Lord Greaves: My Lords, before the noble Baroness sits down, I heard her say that if a local authority receives a complaint about unlawful encroachment it is under a duty to consider that. I heard her say that and I was trying to put it into the Bill with Amendment No. 61B. Will she assure me that that is the case and, if so, how and where?

Baroness Farrington of Ribbleton: Yes, my Lords, if the local authority unreasonably fails to act. The noble Lord's amendment focuses on that which is reasonable. The test of reasonableness may then be taken ultimately if it has acted unreasonably as regards the ombudsman.

Lord Greaves: My Lords, I am interested in that reply. I assume the Minister is saying that the local authority must take account of any complaint it receives about anything connected with any of its powers. That is nothing to do with commons legislation but involves the general powers and running of local authorities. The Minister is nodding in response to that, which is helpful. No doubt she will therefore say that my Amendment No. 61B is not needed.
	I was grateful to the Minister for much of what she said. She emphasised that there will be guidance and that local authorities, commons registration authorities and others will clearly be encouraged by the Government to take seriously their responsibilities under the new Act. I would prefer that their responsibilities were more clearly set out in the Bill and believe that enforcement against unlawful encroachment will remain with the Bill when it goes to the House of Commons. While we may rightly think that we have done a good job on the Bill, which arrived here first, there are unresolved issues. The unlawful interference on common land and the enforcement of acting against that will stay with the Bill beyond this House.
	I am grateful for the Minister's response and I am sorry that she cannot accept the spirit of the amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 43 [Power to exempt]:

Lord Boston of Faversham: My Lords, in calling Amendment No. 58, I must point out that if it is agreed to I cannot call Amendment No. 60.

Lord Bach: moved Amendment No. 58:
	Page 24, line 37, leave out from second "to" to end of line 6 on page 25 and insert—
	"(a) the carrying out by a specified person of specified works on specified land; or
	(b) the carrying out by a specified person, or a person of a specified description, of works of a specified description on
	(i) any land, or
	(ii) land of a specified description.
	(2) The appropriate national authority may only make an order under subsection (1)(a) if it is satisfied that the works specified in the order are necessary or expedient for any of the purposes in subsection (4).
	(3) The appropriate national authority may only make an order under subsection (1)(b) if it is satisfied that works of the description specified in the order are likely to be necessary or expedient on any land, or on land of the description specified in the order, for any of the purposes in subsection (4).
	(4) The purposes referred to in subsections (2) and (3) are—
	(a) use of land by members of the public for the purposes of open-air recreation pursuant to any right of access;
	(b) the exercise of rights of common;
	(c) nature conservation;
	(d) the protection of archaeological remains or features of historic interest;
	(e) the use of the land for sporting or recreational purposes.
	(5) Where any land is the subject of a resolution under section 194(3)(b) of the Law of Property Act 1925 (c. 20) immediately before the commencement of this section, the appropriate national authority may by order provide that section 38 is not to apply to the carrying out of works, or works of a description specified in the order, on that land.
	(6) An order under subsection (1) or (5) may provide that section 38 is not to apply only if the works to which the order relates are carried out in accordance with the terms of the order.
	(7) In subsection (1) "specified" means specified in an order under that subsection."

Lord Bach: My Lords, the Government's Amendment No. 58 builds on provisions set out in Clause 43, which enables the national authority to exempt by order certain works from the requirement to obtain consent under Clause 38. As drafted, an order could be made only where the works are for one of the purposes listed in Clause 43(3).
	I have considered the argument put forward in Grand Committee that a list of purposes is too limited and agree that it should be expanded. The proposed amendment therefore extends the list to include works needed for three additional purposes: sport or recreation, nature conservation and the protection of historic monuments. We do not envisage that the provision would be used casually, but we believe that the clause brings an important and appropriate level of flexibility to the provisions and that the list of purposes now achieves the right balance of interest.
	The intention remains that exemptions would apply only to works which would not have a significant impact on the common. They are intended to enable landowners and others to carry out works for certain purposes which prevent or impede access to a common, but where the works involved are not so significant as to warrant an application to the national authority for consent.
	As under the previous draft, the exemption will be made only if the national authority is satisfied that the works are necessary and expedient for one of the listed purposes. There are two other amendments in the group, so I shall sit down now to allow other noble Lords to speak to them. I beg to move.

Lord Livsey of Talgarth: moved, as an amendment to Amendment No. 58, Amendment No. 59:
	Line 23, at end insert—
	"(f) the promotion of animal welfare"

Lord Livsey of Talgarth: My Lords, for the promotion of animal welfare it is important to be able to undertake works without consent when animals are suffering or would suffer if the works were not carried out. This is an essential insertion in the Bill. In it, we are supported by the National Farmers' Union. There need to be facilities for routine tasks that are necessary to maintain the good health of the animals. There may also be animal health emergencies, such as foot and mouth disease, when it may be right to act rapidly to prevent the spread of the disease. We have seen examples of that in recent times. The words in the amendment are the words used in the Animal Health Act, and, if they are appropriate there, they are surely appropriate here.
	When reading Amendment No. 58 for the first time, I thought that it seemed extremely long and complicated, but, after reading it thoroughly, I see that it has important aspects that give clear guidance. In particular, it is good to see the definition of purposes repeated in subsection (4) of the amendment. It refers to the use of land, the exercise of rights of common, nature conservation and so on. Amendment No. 58 is extremely helpful. I beg to move.

Earl Peel: My Lords, Amendment No. 60, which I tabled, is grouped with these amendments, so I shall speak to it now. I am aware that it becomes obsolete if the government amendment is agreed to. I hope that that amendment will be agreed to, because it is a good amendment. I am grateful to the Minister for including in it the additions that we discussed in Committee.
	Amendment No. 58 goes a significant way towards dealing with the points raised. It gives the Government power to carry out their stated objective of making orders so that the need for consent for minor management works on common land is removed. In view of our recent result on Amendment No. 46, this amendment takes on greater importance. I hope that it will prove to be a significant means of ensuring that sensible management activities, which noble Lords have already discussed, are allowed to continue, thus removing much of the doubt about what constitutes an impediment to access. It will also alleviate the need for land managers to seek consent for a management activity. We know from experience that that can be a lengthy and expensive operation.
	Despite its admirable intentions, the weakness of Amendment No. 58 is that there is nothing in the Bill that suggests that such an order will be made. I appreciate that it would be impractical to try to lay down precisely what should be included in such an order, since the purposes in subsection (4) are extremely wide, as they should be, but it seems reasonable to ask the Minister to consider putting a time limit on the issuing of such an order because, apart from anything else, it would test whether the Minister believes that such an order will be used at all and how effectively. I think he said that it would not be used "casually". I understand that, but I hope that it will be used, and used effectively, so that a clear message can be put forward to deal with the contentious points that we have been discussing. Amendment No. 60 is a probing amendment, but I hope the Minister will assure us that this clause will deal with the problems that we have identified.

The Duke of Montrose: My Lords, we welcome the amendments to Clause 43. In Committee, we requested that more purposes be added to the specified set, and we are pleased to see that the protection of heritage has been listed as a priority on the face of the Bill. We also raised the question of animal welfare and, to that extent, we wish to support the amendment moved by the noble Lord, Lord Livsey. However, I understand that the problem is that to protect animals fences would have to be erected, which does not always tally with the Government's planned treatment of common land. Will the Minister answer that point when he replies?
	The phrase "any land" in sub-paragraph (b)(i) caught my attention. It seems to be rather woolly. Surely "any land" includes "land of a specified description", used in sub-paragraph (b)(ii). Can the Minister explain why two sub-paragraphs are needed?
	The noble Earl, Lord Peel, spoke to his amendment, which would oblige the national authority to make an order within 12 months. Although the new clause inserted in Committee is an improvement and gives power to the Government to carry out their stated objectives of making orders so that minor works and management works are taken out of the need for consent, there is, as the noble Earl suggested, no obligation on the Government to make regulations, nor is there any definition of what should go in them. Provision for the national authority to be obliged to make an order is intended to press that point, although there is no provision about what needs to be in the order. The object is to make the point, rather than to succeed.

Lord Tyler: My Lords, I support Amendment No. 59, which was moved by my noble friend Lord Livsey of Talgarth. In the other place, I had Front-Bench responsibility for agriculture during the BSE and the foot and mouth crises, and I wish to draw attention to the need for speedy action in some circumstances. It would not be possible under the cumbersome regulations that would otherwise be necessary. In that context, it is an extraordinary lacuna that we do not have specific reference to animal welfare in the clause as amended by Amendment No. 58.
	The Minister said that the previous list of purposes was too limited. It is still too limited. Subsection (4) is not illustrative; it is exclusive and exhaustive. It states:
	"The purposes referred to subsections (2) and (3) are".
	They do not illustrate what the circumstances might be. They are very precise, and the exclusion of any reference to the promotion of animal welfare is a grave weakness in the Bill. The Minister may say that the amendment is not precise enough or that it will not deal with the problem with which I am concerned, and with which I am sure the farming community will be concerned, but I plead with him to think carefully, either at the next stage in this House or when the Bill goes to the other place, about the fact that the clause as it stands does not give an exemption power in special, emergency circumstances.

Lord Bach: My Lords, my only fear in replying is that the noble Lord, Lord Tyler, will think that I am picking on him. I promise him that I am not. However, I shall try to argue successfully that Amendment No. 59, although very attractive—who can resist the call for animal welfare?—is inappropriate in this instance.
	I have already spoken to Amendment No. 58, and I am grateful to noble Lords around the House for their support on that. Let me see what I can do on Amendment No 59. It adds the expression,
	"the promotion of animal welfare"
	to the list of purposes for which an exemption may be issued. I have listened carefully to the points that have been made and the same points that were made by the noble Baroness in Committee. My concern about adding animal welfare to the list of purposes in Clause 43 is essentially as was explained in the letter to noble Lords following Grand Committee. The examples that I have been given for why certain works may be needed for the protection of animal welfare are not consistent with the reasons why we might issue an exemption from the controls on works. It seems to us that channelling animals away from recreational hotspots or keeping them from straying onto roads would require permanent works. Furthermore, such works could have a significant effect on the open and unenclosed nature of our commons in places where people congregate to enjoy the common, either on foot or in a vehicle. I ask the House: can we imagine the difference that it would make driving across Dartmoor, for example, with fences on either side of the road?

Lord Tyler: My Lords, the Minister may know that most of the highways across Dartmoor are already fenced to prevent accidents. So I am afraid that the example is not a good one. While I am on my feet, can I ask him specifically to think about the situation in 30 or 40 years' time when some new animal disease epidemic erupts where it is absolutely necessary? We are not going to want to re-visit the whole Bill.

Lord Bach: My Lords, I will come back to that point. I absolutely stand corrected about the West Country. I thought the noble Lord was from Bodmin Moor.

Lord Tyler: My Lords, I am.

Lord Bach: He is, my Lords, but he obviously knows Dartmoor better than I do—and I will be asking why that Dartmoor example was given.
	Perhaps I may return to what is a serious debate. Permanent works of this scale and significance must be subject to the consent regime. Otherwise, there would be no purpose in having the regime. I do not rule out entirely the possibility that fences might be necessary in those or other similar circumstances, but the works would then be subject to the consent regime in Clause 38. The procedures will ensure that proposals are carefully scrutinised and that the public generally have a chance to make their views known and have them taken into account. If at the end of that process the national authority decides that a fence is necessary, I am sure that there would be widespread acceptance of that decision, but I cannot say that we are convinced that everyone would accept that works of that nature should be exempt from the controls, which is what is being sought, without the widest possible consultation.
	Both noble Lords on the Liberal Democrat Benches mentioned emergencies. In emergencies, such as foot and mouth disease, there are already powers in the Animal Health Act that allow works to be undertaken. The exemptions that we have inserted in Clause 43 are for minor or temporary works, not works of such significance that they should be subject to the controls on works in Clause 38, which, as I understand it, have the general support of noble Lords. Exemptions are not a substitute for a fast-track procedure for emergency works because such exemptions are made by order.
	I am invited to come back to the noble Lord, Lord Tyler, on the Dartmoor point. I am not sure whether I shall resist the temptation, but I am advised that most roads across Dartmoor commons are not fenced. The fenced sections tend to be across new—I cannot read them.

Lord Tyler: My Lords, perhaps I may give the noble Lord an opportunity to look again at his notes by intervening briefly to say that I chose my words carefully. Not all the highways across Dartmoor are fenced, but the major roads, particularly those in the vicinity of the outskirts of Plymouth, are and have been for many years. I know, as I used to be vice-chair of the Dartmoor National Park Committee.

Lord Bach: My Lords, I have now had translated the word that I was looking at. The fenced sections tend to be across what is described as newtakes, also in-bye land and inclosures, which are not common land. I think that the noble Lord and I, who agree on so much, will have to disagree on this.

Lord Tyler: My Lords, I invite the Minister to visit Dartmoor.

Lord Bach: My Lords, I was hoping that the noble Lord would do that. I have made our point on why we do not think that making what, on the face of it, sounds like an attractive addition to the clause is appropriate. I repeat: emergencies can be dealt with under existing legislation, and, of course, would be dealt with under emergency legislation.
	Amendment No. 60, I understand, is a probing amendment. I shall try to explain where we come from on it. The intention is to find out when the Government intend to make orders specifying certain exemptions from the controls. We do not envisage that just one order would be made. A number of them could be made as and when the national authority considered it appropriate to do so. My letter tried to explain to noble Lords that we saw the system as a flexible one, allowing the national authority to decide at any time to make an order. What may prompt the making of such an order might be the result of work undertaken by the national authority itself, or it could happen as a result of a request from another body. We see the system helping to ensure that the consent regime effectively protects the open and unenclosed nature of common land, without imposing unnecessary or unwarranted burdens on anyone.
	Although I have to emphasise that the decision to issue an order is discretionary, I can give a reassurance that our intention is to make such orders specifying exemptions where it is appropriate. We envisage taking forward the question of exemptions at the same time as the implementation of Part 3 generally. That process will involve consultation with interested parties. There will be an opportunity at that stage for people to comment on our proposals and to put forward suggestions of their own. That is as far as I can go tonight in dealing with the amendment.

Earl Peel: My Lords, I intervene briefly to say that the Minister has given me much the answer that I hoped that he would. So I am extremely grateful for that.

Lord Bach: My Lords, I have finished what I wanted to say about Amendment No. 59.

Lord Livsey of Talgarth: My Lords, we will read carefully what the Minister said about our amendment on animal welfare. It seems to us that there are situations in which this should apply. It is a question of interpretation whether provisions in the Bill are adequate for—perhaps we should say—smaller activities, where for humane purposes it is necessary to bring animals into a space that has capacity for them to be examined and treated, if necessary by a vet. Indeed, it may be a question of life and death for the animal. So we shall read carefully what the Minister has said. We may look at this again and have discussions with our colleagues in another place about it. In the mean time, I beg leave to withdraw the amendment:

Amendment No. 59, as an amendment to Amendment No. 58, by leave, withdrawn.
	On Question, Amendment No. 58 agreed to.
	[Amendment No. 60 not moved.]
	Clause 44 [Supplementary]:

Baroness Farrington of Ribbleton: moved Amendment No. 61:
	Page 25, line 11, after "Act" insert "passed before this Act"

Baroness Farrington of Ribbleton: My Lords, Amendment No. 61 provides that the powers in Clause 44, which allow a national authority to amend by order local or personal Acts, can be used only in respect of Acts passed before this Act.
	That responds to a concern expressed by the noble Baroness, Lady Byford, in Grand Committee that, otherwise, that power could be used to amend Acts passed in future. That would clearly be inappropriate. Amendments Nos. 72 and 74 make similar changes to other provisions in Clauses 51 and 52, which give the national authority powers to amend local or personal Acts by order. We hope that the noble Baroness is pleased. We are grateful to her for her assistance. I beg to move.

Baroness Byford: My Lords, I am grateful to the Minister for the government response to the amendments that we moved in Committee. That was our previous Clause 49 and Amendment No. 244 in Hansard at column GC291. I shall not delay the House any longer but thank the Minister for coming back and responding to the suggestions that we made in Committee.

On Question, Amendment agreed to.
	Clause 45 [Powers of local authorities over unclaimed land]:
	[Amendments Nos. 61A to 61D not moved.]

Lord Greaves: moved Amendment No. 61E:
	Page 25, line 37, at end insert—
	"( ) The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action over unclaimed land."

Lord Greaves: My Lords, this is another issue to which we have not really got to the bottom yet and there is no satisfactory solution in the Bill. It concerns unclaimed commons—land that has been registered as common land that has not been claimed by any owners. Some of it may be small pieces of land that have effectively been abandoned; others may be commons that are satisfactorily operated as commons, but no one knows who is the owner. There is a whole range of them with different circumstances and not all of them are in crisis. However, there is a significant number of unclaimed commons out of the 2,000 in England, which amount to 4,000 hectares, and 500 in Wales, which amount to more than 21,000 hectares where there is a significant problem.
	We had a long discussion about this in Grand Committee, where I tabled amendments proposing that ownership of unclaimed commons could be transferred to local authorities by various technical means. The Minister was very persuasive in suggesting that that was not the way around the problem and would lead to all sorts of complications—not least a problem with the Human Rights Act 1998. Nevertheless, there is a problem. Many commons are neglected, overgrown and crying out for positive management.
	In Grand Committee, the Minister suggested that the main answer to that lay in the powers within the Bill to deal with unlawful incursions on commons, unlawful encroachments of the sort that we were discussing a few groups ago. Where the problem is one of unlawful incursion, of damaging development or works on a common, it can indeed be dealt with in that way. In that sense, the Minister was right. But in many cases, the powers under Clause 45 will be insufficient. In replying to the debate in Grand Committee, the Minister said—and this gets to the nub of the problem:
	"We believe that the real problem underlying unclaimed land is not that there is no known owner but that the lack of clarity about ownership can give rise to ineffective management. We therefore concluded that the problem could be tackled by enhancing the powers for management of unclaimed land and, in addition to Clause 43 and schemes of management under the Commons Act 1899, to give commons associations established under Part 2 the power to manage unclaimed commons"—[Official Report, 14/11/05; col. GC 277.]
	All that will be extremely helpful, useful and positive, but there will still be commons that are unclaimed, in a mess and that need management that will not be covered by any of those provisions.
	If the Government will not accept what I propose in Amendment No. 61F, what do they think could be done? How will those commons be tackled? It is not a question of unauthorised encroachment. There are no management schemes under the 1899 Act and there is no commons association. The problem is one of management. It is highly likely that it is a problem of management of the vegetation—it is overgrown with brambles, gorse or bracken. It might have lots of nasty plants growing on it, such as ragwort, dock and other injurious weeds of that nature. Indeed, it may be causing a problem in the locality because it is invested with Japanese knotweed or other such unpleasant aliens.
	What I propose in Amendment No. 61F is that where those conditions apply—where no dissolution is available—the local authority has the power not to take over ownership of the common but to do what the Minister said in Committee ought to happen: to exercise any rights of management of the land. As far as I can see, that is not already in the Bill. Amendment No. 61E merely gives the appropriate national authority instructions to issue guidance to local authorities on the exercise of their powers to take action over unclaimed land. I know exactly what the Minister will say to me in response, because it is what she said to me in response to guidance on action over unauthorised incursions on common land, so I tell her in advance that I accept what she says about that. If she says it again positively here, I shall be delighted. Some of us will be watching and, if the guidance does not appear in a satisfactory form, we will use the appropriate methods to hound the Government until they provide that guidance.
	The real question here is, who will manage the vegetation, especially, but also the other aspects of unclaimed commons where there is no owner and where the other available options either do not apply or are inappropriate because there is no unauthorised incursion? I look forward to hearing the Minister's reply to an important question that is so far unanswered. I beg to move.

Baroness Byford: My Lords, I rise briefly to thank the noble Lord, Lord Greaves, for raising this issue, which we debated in Committee. I have two questions. He is quite right to ask: if those unclaimed commons are left, who has the right to put things in good management order—good working order? He suggests that that should be the local authority. If we then define who it is, my second question is: who will pay?

Baroness Farrington of Ribbleton: My Lords, for a moment I thought that we had strayed into an Unstarred Question, when we got into bracken and hogweed. Speaking to Amendment No. 61E, I am happy to give the noble Lord, Lord Greaves, an assurance. We will provide advice to local authorities on the use of their powers under Clause 45 and, indeed, on the use of their powers under the Bill generally, in a circular that we intend to publish as part of the implementation programme following Royal Assent. As I said, and as he recognised, in the context of Amendment No. 57A, we do not need to take any additional powers to do that and we fully intend to do so.
	We believe that Amendment No. 61F is unnecessary. Clause 45 already confers on local authorities powers of protection for unclaimed common land. Where something more is required, three options are available. First, the authority may wish to help facilitate the establishment of a commons association to manage the common. If the common has ceased to be agriculturally active, there is no reason why the authority should not be represented on the management committee. Secondly, the authority has powers to create a scheme of management for the common under the Commons Act 1899. Those approaches would confer the sort of management powers which I think the amendment proposed by noble Lord, Lord Greaves, is leading to.
	The third option is in response also to the noble Baroness, Lady Byford. The local authority may consider taking the land in hand and managing it as if it were the owner. We believe that some parish councils have taken such an approach with common land and that our solutions for management of unclaimed land are adequate. As I have demonstrated, they provide several means whereby better management may be secured through local authority involvement. We do not feel that it is necessary to strengthen the powers of local authorities .

Lord Greaves: My Lords, is the Minister saying that local authorities already have the power that I seek to give them in this amendment? If so, within which enactment do they have that power? She said that the third option was that a local authority could simply take over a disused, unkempt and overgrown common and manage it. What power do they currently have so that they can do that?

Baroness Byford: My Lords, I am grateful for the Minister's comment concerning my intervention. One of the problems at local government level, particularly as regards improvements of rights of way following the CROW Act, is that there is not enough money to enable local authorities to do what they are supposed to do. One of the difficulties is that the more central government pass responsibility down to local authorities, although they are happy to undertake it, the more there has to be financial support to enable them to undertake it.

Baroness Farrington of Ribbleton: My Lords, I cannot cite exactly which law and Acts confer those powers. In local government, it is often a chain of Acts. However, some parish councils already take an approach such as this with a view to common land where it was unaware of an owner. Therefore, it has already happened. It is not that we need additional legislation in order for it to happen. I will write on the details of the various Acts which have given local authorities those powers.

Baroness Miller of Chilthorne Domer: My Lords, I wish to clarify the point raised by the noble Baroness, Lady Byford. The Minister said that local authorities have the power. Under Amendment No. 61F in the name of my noble friend Lord Greaves, they would be able to apply for agri-environment schemes presumably to help with resource costs. I assume that the Minister is including that power in her reply.

Baroness Farrington of Ribbleton: My Lords, I would need notice of that question because of the issue of ownership of land and when it could be established. I would not feel at all confident in agreeing with the noble Baroness. It is a complex legal area and I would want to take detailed advice on it.

The Duke of Montrose: My Lords, it seems to me that before you can enter an agricultural environment scheme you have to have an agricultural holding number and I am not sure that the local authority would have the appropriate number.

Baroness Miller of Chilthorne Domer: They might have, my Lords. A number of them have county farm estates and other landholdings and because of sites of special scientific interest and so on.

Baroness Farrington of Ribbleton: My Lords, adopting a different hat, we are on Report.

Lord Greaves: My Lords, I was about to comment that we are perhaps fortunate that the Minister is the Minister and not the Whip. But I think that we were all aware of what we were doing and were teasing her a little. I am very interested in what the Minister has said. I shall withdraw Amendment No. 61E and look forward to seeing the advice when it arrives. As regards Amendment No. 61F, I am very clear that the Minister has told the House that this is not necessary because local authorities already have the power that I seek to give them. The Minister is unable to give us absolute chapter and verse because it involves arcane and complex matters that are hidden in local government law. But parish councils do it. I know that parish councils do lots of things. I am not sure that they worry too much about whether what they do is within their powers or not.
	Nevertheless, what happens to commons which are not claimed is an important matter. They might be big or small. They might be near the middle of a village where they might be taken over as a town green. Who knows? They might be very remote and out of the way. If we are trying to sort out commons legislation for the next 40 years or whatever and come to a definitive position on who is registered on them, who manages them, how they are looked after and so on, this has to be bottomed properly. I look forward to receiving the Minister's letter. I hope that that will be the end of the matter and that we and our friends elsewhere, including the House of Commons, will be satisfied by it. This is another issue that will go with the Bill to the House of Commons, but it would be very nice to settle it here before we send it. It is complicated, but it is very important. On that basis, I thank the Minister for her comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 61F not moved.]
	Clause 46 [Powers relating to unauthorised agricultural activities]:

Baroness Farrington of Ribbleton: moved Amendment No. 62:
	Page 26, line 2, leave out "any relevant" and insert "the appropriate national"

Baroness Farrington of Ribbleton: My Lords, Amendment No. 62 responds to the arguments put to us in Grand Committee that the Bill should allow only the national authority—not other specified bodies—to take action under Clause 46 against damaging and unauthorised agricultural activities. That is the effect of the amendment. Having carefully considered the matter, we concluded that giving the power to one authority in each country will be likely to encourage consistent use of the power. We hope the amendment will prove welcome to noble Lords.
	Amendment No. 63 replaces one of the criteria that governs when this power can be used. Again, it does that in response to persuasive points made in Grand Committee—notably by the noble Lord, Lord Rotherwick. For the current requirement that unauthorised agricultural activity must be detrimental to,
	"the protection and promotion of sustainable agriculture on the land"
	before action is taken, the amendment substitutes a requirement that the activity must be detrimental either to the interests of the occupier or anyone else with rights over the common or to the public interest in the common.
	Before opting for an amendment in this form, we considered carefully the arguments for linking this formulation to the one used in Clause 31(1) relating to the functions which can be given to a commons association. We concluded that this would not fully cover the situations in which this power might be required. Our amendment allows action to take place to stop unauthorised agricultural activity where the activity would damage the interests of rights holders. It would also ensure that where unauthorised agricultural activities were detrimental to the public interest, it would be possible to act. Amendment No. 65 is entirely consequential on this amendment, while Amendment No. 71 defines "the public interest" for this purpose in the same terms as used elsewhere in the Bill. I beg to move.

The Duke of Montrose: My Lords, we welcome those government amendments. In particular, we are glad to see the end of the previous definition about sustainable agriculture. We are better without that. Government Amendment No. 71 is a welcome response to our debate in Grand Committee on the nature of public or private interest. It is reassuring that a clear definition of the public interest has been included and to see that both private interest and public interest are represented equally in this part.

Lord Livsey of Talgarth: My Lords, we too welcome these amendments. It is nice to be able to agree so wholeheartedly with what has been done. I am particularly pleased with government Amendment No. 70. Indeed, we had already written an amendment that was almost word-for-word the same. We believe that the responsibilities lie where they should, with the appropriate national authority. It has the expertise to judge many of these issues. We are grateful for what seems to be a satisfactory conclusion to our thoughtful debates in Committee. Many points were made and we are glad to see that they have been accepted.

Lord Rotherwick: My Lords, I welcome the amendments that are included in this group that have been tabled in response to my amendments, especially in the light of the fact that they remove the unpalatable words, "sustainable agriculture", and bring greater clarity to this part, which is what I sought. I thank the Minister.

Lord Tyler: My Lords, I want to add my congratulations to the ministerial team. Earlier I failed to refer to the specific reference to archaeological remains and historic interest in the new version of Clause 43. It appears again here and I am delighted. I know that a great many other people who have been concerned about this point will also be very pleased.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton: moved Amendments Nos. 63 to 71:
	Page 26, line 9, leave out paragraph (c) and insert—
	"(c) the activity is detrimental to—
	(i) the interests of persons having rights in relation to, or occupying, the land; or
	(ii) the public interest." .
	Page 26, line 11, leave out "relevant" and insert "appropriate national"
	Page 26, leave out line 19 and insert "matters specified in subsection (1)(c)(i) and (ii);"
	Page 26, line 23, leave out "relevant" and insert "appropriate national"
	Page 26, line 29, leave out paragraph (a).
	Page 26, line 36, leave out "a relevant" and insert "the appropriate national"
	Page 26, line 43, leave out "relevant" and insert "appropriate national"
	Page 27, line 1, leave out subsection (8).
	Page 27, line 12, at end insert—
	"(9A) The reference in subsection (1)(c)(ii) to the public interest includes the public interest in—
	(a) nature conservation;
	(b) the conservation of the landscape;
	(c) the protection of public rights of access to any area of land; and
	(d) the protection of archaeological remains and features of historic interest."
	On Question, amendments agreed to.
	Clause 51 [Power to amend enactments relating to common land or greens]:

Baroness Farrington of Ribbleton: moved Amendments Nos. 72 to 73:
	Page 28, line 24, leave out ", or in the same session as,"
	Page 28, line 27, leave out from beginning to "common" in line 28 and insert "it is expressed to apply (generally) to common land, any"
	On Question, amendments agreed to.
	Clause 52 [Power to amend enactments conferring functions on national authorities]:

Baroness Farrington of Ribbleton: moved Amendment No. 74:
	Page 28, line 33, after "Act" insert "passed before this Act"
	On Question, amendment agreed to.

Lord Greaves: had given notice of his intention to move Amendment No. 74A:
	After Clause 53, insert the following new clause—
	"ADVICE ON OPERATION OF ACT
	Natural England, in England, and the Countryside Council for Wales, in Wales, shall advise the appropriate national authority on the operation of the Act, and shall in particular from time to time report on the effectiveness of commons associations established under Part 2 in relation to—
	(a) the discharge of their functions, and
	(b) the extent to which they have had regard to the public interest in discharging those functions."

Lord Greaves: My Lords, I think that the arguments behind this amendment have been dealt with thoroughly. I shall therefore not move the amendment.

[Amendment No. 74A not moved.]
	Clause 58 [Interpretation]:

Lord Livsey of Talgarth: moved Amendment No. 74B:
	Page 30, line 35, at end insert—
	""access" means the rights of the public to enter or remain on registered common land within the meaning of the Countryside and Rights of Way Act 2000 (c. 37) and rights exercised under—
	(a) the Metropolitan Commons Act 1866 (c. 122);
	(b) the Commons Act 1876 (c. 56);
	(c) the Commons Act 1899 (c. 30);
	(d) the Commons Act 1908 (c. 44);
	(e) the Law of Property Act 1925 (c. 20); and
	(f) all other relevant Acts relating to access on commons and town and village greens, whether public, local, personal or permissive."

Lord Livsey of Talgarth: My Lords, this amendment arises from an extremely interesting debate in Committee on access. Noble Lords will recall that I tabled an amendment on the lines of the beginning of the amendment now before us. It mentioned only,
	"the rights of the public to enter or remain on registered common land within the meaning of the Countryside and Rights of Way Act 2000".
	The earlier amendment finished at that point. Both my noble friend Lord Greaves and the noble Baroness, Lady Farrington, chided me for being so selective— which is the best way to describe the situation—in choosing to quote only the Countryside and Rights of Way Act 2000. I have discussed this with a number of people. My revised amendment tries to ensure that anyone reading what will be the Commons Act 2005 will be able to find in this clause—

Lord Bach: My Lords, it is likely to be the Commons Act 2006.

Lord Livsey of Talgarth: My Lords, I understand that the noble Lord is not into point scoring, but I read in the Bill that this is to be the "Commons Act 2005". I may have been looking at the wrong version; perhaps it said that only in its first form and that it was amended in Committee to refer to "2006". I think that it is worth checking.
	The new amendment casts the net wide. I have taken on board the points made by my noble friend and the noble Baroness in Committee that a considerable amount of additional access is permitted through previous Acts of Parliament and other lawful means of access. Noble Lords will see that Amendment No. 74B now includes references to the Metropolitan Commons Act 1866, the Commons Act 1876, the Commons Act 1899, the Commons Act 1908 and the Law of Property Act 1925. Paragraph (f), in trying to take the broadest account of what was said in Committee, states,
	"all other relevant Acts relating to access on commons and town and village greens, whether public, local, personal or permissive".
	It would be great if people could check the definition of "access". They could now find it in this Bill so far as common land is concerned. I know that access is mentioned in passing in other parts of the Bill, but here they would be able to check precisely on their rights. Without more ado, I beg to move.

Lord Bach: My Lords, this amendment would introduce a definition of the word "access" by reference to a number of previous Acts. When the noble Lord tabled an amendment on this subject in Grand Committee, his concern was to ensure clarity about the type of public access referred to at various points in the Bill. At that stage he had in mind to refer in his definition only to CROW access, but he has now suggested a more broadly framed definition. In my letter to noble Lords dated 24 November, I explained why we do not favour this approach and I shall run briefly through the reasons.
	Essentially, our difficulty is that we disagree that a generic definition would be helpful. In fact, we think it would be positively unhelpful. The reason for this is that each time we use the word "access" in the Bill—and currently it has eight separate mentions in the Bill as amended so far—we use a formulation to fit that particular context. Where they are different, they are different for a reason.
	Four references form part of the identical inclusive definitions of the phrase "the public interest" that appear in Clauses 16, 31, 39 and 46, which we have just amended to include this definition. The fifth reference avoids impacts on existing access rights by any order we may make under Clause 36 to amend local measures relating to management of common land. Two references relate to works on common land. One helps to set the scope of the works control system under Clause 38, while the other reference forms one of the grounds on which an order under Clause 43 may give an exemption from the requirement for approval for works. We dealt with the last reference when we considered Amendment No. 58 earlier.
	As I say, these formulations are different for a reason. To take the example that best makes the point, the reference in Clause 38 to works preventing or impeding access is not a reference just to rights of public access, it is a reference to access of any description whatever—by statute, by custom or tradition, by commoners for the purposes of exercising their grazing or other rights, and so on. It also includes access to the subsoil of the common, so that any new artificial surfacing is also likely to be caught. This was the formulation used in the Law of Property Act 1925 and we intend it to have the same meaning in the Bill.
	It would be unfortunate if we were inadvertently to alter the focus of the works control system through a desire to introduce a generic definition of "access" into this general interpretation clause. We believe that it would constrain the meaning of the word in a way which I know is neither intended nor would be helpful. That is why I welcome our short debate on the question of definition, but on this occasion I believe that the Government are right.

Lord Livsey of Talgarth: My Lords, the Minister has given a detailed reply. I understand the different circumstances in different parts of the Bill that relate to different aspects of access and, in particular, how the activities on common land that we have debated in previous amendments are relevant. I have made a brave attempt to include the amendment in the Bill. I hope that what the Minister has said very carefully on access will be given prominence in the regulations. That might assist people to understand why access is being treated in that way.
	Clause 59 of the amended Bill, the Short Title, states:
	"This Act may be cited as the Commons Act 2005".
	I was surprised, which is why I quote it. I thought that it might be "2006". Without more ado, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.
	Schedule 1 [Rectification of mistakes etc under the 1965 Act]:

Lord Bach: moved Amendment No. 75:
	Page 32, line 21, after "(3)" insert ", (3A)"

Lord Bach: My Lords, this is the last group of amendments on Report. It includes government Amendments Nos. 75 to 78 and Amendment No. 79, in the name of the noble Baroness, Lady Byford. Unusually, I shall deal with that amendment, in passing at least, before the noble Baroness has spoken to it, because, as I will explain in a moment, we are happy to consider it.
	Government Amendments Nos. 75 and 76 respond to amendments that the noble Lord, Lord Greaves, tabled in Grand Committee and which we agreed to consider. They relate to the provision in Schedule 1(2) that enables application for the registration of waste land of the manor. Such applications must relate to land provisionally registered as common land under Section 4 of the 1965 Act but where the registration was cancelled in certain circumstances.
	These amendments—Amendment No. 75 is simply a paving amendment—provide that application under paragraph 2 will be possible in one new class of case. That is where the registration was referred to the Commons Commissioners—they were here at the start of Report and are here in the last group—and the commissioner concluded that the land was not subject to rights of common but failed to go on to consider whether the land qualified to be registered as waste land of the manor.
	In our view—and the courts lend that view some support—the commissioner should have considered the question of status as waste land of the manor regardless of whether or not it was argued before him. That is because the commissioner was not simply deciding a case between the parties to an application but determining a matter of public interest. So this amendment will enable such cases to be reviewed where application is brought forward under paragraph 2 and where the land continues to have the status of waste land of the manor at the time of application.
	Amendments Nos. 77 and 78 address the other side of the coin in Schedule 1. Paragraphs 4 and 5 of that schedule deal with deregistering wrongly registered common land and town or village greens. The amendments respond to a concern raised by the noble Earl, Lord Peel, about the criteria for application under those paragraphs.
	As the Bill stands, an application could not be made in respect of any land where the original registration was referred to the Commons Commissioner for determination. That is because the commissioner was the proper tribunal to sort out any disputes about registration and we do not intend to reopen such matters, which were thrashed out at the time. But the noble Earl told us that there was a possibility that paragraphs 4(2)(b) and 5(2)(b) could be read as meaning that an application could not be made even where the commissioner was required only to determine the rights exercisable over the land. Where there was no objection to the registration of the land itself, the commissioner was unable to remove the land from the register, even if it was patently obvious that the land was not common land. We believe that the Bill already has that effect but are happy to ensure that the matter is put beyond reasonable doubt.
	Amendment No. 79 reprises an amendment tabled in Committee by the noble Baroness, Lady Byford. I apologise to the noble Baroness that we have not addressed the issue in our amendments or in correspondence. We have looked at the concerns briefly raised by the noble Baroness in Committee and have some residual doubt about whether the wording of paragraph 5(3)(a) ensures that the physical impediment must have been present for the whole 20-year period. That is why we felt unable to respond to her amendment in Grand Committee. We are continuing to consider whether amendment is necessary but do not believe that Amendment No. 79 fits the bill. Should an amendment be required, we will aim to table one at Third Reading. I beg to move.

Baroness Byford: My Lords, I am grateful to the Minister for his comments on Amendment No. 79, which is grouped with these amendments. He indicated in Committee that he would come back on the issue but, unfortunately, sometimes these matters slip through the net. We look forward to hearing whether he thinks the amendment is necessary. If he does not think it is needed we may return to it. We have plenty of time before Third Reading, and I hope that the Minister will respond to our concerns.
	On behalf of my noble friend Lord Peel I thank the Minister for responding to issues that he raised in Committee. I know that he is grateful to the Government for addressing those matters.
	As these are the last amendments—I shall obviously not be moving Amendment No. 80—I thank both Ministers for how they have conducted the Bill through Report stage.

Lord Greaves: My Lords, before my noble friend rises to echo those comments, perhaps I may add my support to them and thank the Minister for Amendment No. 76, which addresses one of the points on waste land of the manor that we raised in Grand Committee. It is a useful amendment.

Lord Livsey of Talgarth: My Lords, I thank both Ministers for how they have taken the Bill through so far. We have won some, drawn some and lost some, which happens with a Bill of this kind. I am fascinated that in the last group of amendments the commons commissioners are mentioned, albeit in a historical sense, but they were operative at the time of the registration period and have been so up until now. Certainly there is food for thought there. I thank the Ministers for their co-operation.

Lord Bach: My Lords, before the Question is put, I thank noble Lords for their kind comments about my noble friend and me. I reciprocate those comments to the Benches opposite. We have done well to complete the Report stage in the time that we have.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton: moved Amendments Nos. 76 to 78:
	Page 32, line 30, at end insert—
	"(3A) The circumstances in this sub-paragraph are that—
	(a) the provisional registration was referred to a Commons Commissioner under section 5 of the 1965 Act;
	(b) the Commissioner determined that the land was not subject to rights of common and for that reason refused to confirm the provisional registration; and
	(c) the Commissioner did not consider whether the land was waste land of a manor."
	Page 33, line 32, after "registration" insert "of the land as common land"
	Page 34, line 12, after "registration" insert "of the land as a town or village green"
	On Question, amendments agreed to.
	[Amendment No. 79 not moved.]
	Schedule 2 [Registration: transitional provision]:
	[Amendment No. 80 not moved.]
	Schedule 3 [Works: supplementary amendments]:

Baroness Farrington of Ribbleton: moved Amendments Nos. 81 and 82:
	Page 38, line 24, at end insert—
	"(c) land not falling within paragraph (a) or (b) which is in the New Forest and is subject to rights of common"
	Page 39, line 8, at end insert—
	"7 The prohibition in section 38(1) does not apply to works carried out in connection with the taking or working of minerals if—
	(a) the works were granted planning permission under any enactment before the commencement of section 38;
	(b) the works are carried out in accordance with that planning permission in the period allowed for the works to be carried out (subject to any extension of time granted before or after the commencement of that section)."
	On Question, amendments agreed to.

Civil Partnership (Judicial Pensions and Church Pensions, etc.) Order 2005

Lord Evans of Temple Guiting: rose to move, That the draft order laid before the House on 17 October be approved [6th Report from the Joint Committee].

Lord Evans of Temple Guiting: My Lords, in moving the draft Civil Partnership (Judicial Pensions and Church Pensions etc.) Order 2005, I shall speak also to the remaining orders standing in my name. I am satisfied that the provisions of these statutory instruments are compatible with the European Convention on Human Rights.
	Your Lordships will recall debating a number of statutory instruments since the Civil Partnership Act obtained Royal Assent. The last time was in October, when I set out that there were five affirmative orders still to be debated by the House. Four of them are before us today. The remaining order is the Civil Partnership Act 2004 (International Immunities and Privileges, Companies and Adoption) Order 2005. It is made under Section 259 of the Act amending the International Organisations Act 1968, the Companies Act 1985 and the Adoption and Children Act 2002. With that order, which I understand was laid before this House today, we are confident that we will have made all the changes necessary to complete the implementation of the Civil Partnership Act.
	I am aware that this has at times seemed like an endless raft of legislation, but each statutory instrument has been essential in delivering the wide-ranging and progressive legislation that we agreed during the passage of the Bill. The orders and regulations before us are no different; they represent a varied set of changes, and I will summarise the main issues this evening.
	First, I turn to the Civil Partnership (Judicial Pensions and Church Pensions, etc.) Order 2005. The order is made under Sections 255 and 259 of the Civil Partnership Act 2004. Noble Lords will recall that we debated at length scheme members' rights to receive survivor pensions for civil partners. Amendments which this House approved on 11 July have already been made under the Pension Schemes Act 1993 to require contracted-out pension schemes to provide surviving civil partner pension benefits in respect of service accrued from 6 April 1988. In accordance with this requirement, the order provides that the judicial pension schemes will provide survivor benefits for civil partners based, as a minimum, upon members' contracted-out rights accrued since 6 April 1988.
	In addition, where the respective judicial schemes currently offer surviving spouses' pensions on more preferential terms than the minimum required of contracted-out schemes, the order amends the schemes so that the same treatment is offered in respect of surviving civil partners' pensions. Where the existing provisions of the schemes treat widows and widowers differently, civil partners are treated in the same way as widowers.
	Pension changes are necessarily detailed and technical. The draft order modifies both the Judicial Pensions Act 1981, which continues to apply to a number of office holders appointed prior to April 1995, and the Judicial Pensions and Retirement Act 1993, which applies to those appointed after that date, as well as to those who have opted to transfer from the scheme under the 1981 Act into that created by the 1993 Act.
	The draft order also modifies the subordinate legislation of those pension schemes. For the most part, the order simply adds appropriate references to civil partners and civil partnerships to the existing provisions relating to surviving spouses. The remaining amendments provide transitional arrangements for existing members of the judiciary and for the calculation of the contributions required from them. Similar changes are made to the separate legislation affecting those judicial office-holders in Northern Ireland whose benefits fall to be determined under older legislation.
	The changes do no more than ensure the equal treatment of civil partners under the judicial pension schemes. The order also amends Church legislation in relation to pensions and certain other matters, such as the provision of residences to retired clergy, to ensure that civil partners are treated in the same way as spouses. In particular, Schedule 7 contains amendments to the Church of England Pensions Scheme established under the Church of England Pension Regulations 1988 and the Church of England Funded Pensions Scheme established by trust deed under the Pensions Measure 1997. This is to ensure that such provision complies with legal requirements in relation to civil partners' pensions, in particular those relating to contracting out, and, for future service under the funded pensions scheme, the Employment Equality (Sexual Orientation) Regulations 2003.
	It is, of course, the convention that the Government do not legislate for the Church of England without its consent. These provisions are being included at the request of the Church of England, having been approved by the House of Bishops and the Archbishops' Council.
	I shall now turn to the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005. These regulations are made under Section 219 of the Civil Partnership Act, which gives powers to make provision in relation to the jurisdiction of the courts in England, Wales and Northern Ireland to hear civil partnership proceedings. It also contains powers to make provision for the recognition of orders made in other member states relating to civil partnership proceedings. In particular, the regulations make provisions on jurisdiction of the courts in England, Wales and Northern Ireland based on the approach taken in matrimonial matters as set out in the council regulation known as Brussels II Bis. This council regulation deals with divorce, annulment and legal separation in matrimonial matters. It does not cover civil partnerships. In order to ensure consistency in relation to civil partners, the regulations make provisions corresponding to the council regulation.
	The purpose of the recognition parts of these regulations is to enable civil partners who obtain a dissolution, annulment or legal separation in another member state to have the same recourse as married couples to resolve issues arising from relationship breakdown in this country. However, I should make it clear that there is no obligation on other member states to recognise our civil partnerships. Indeed it is a matter for each member state to decide whether it wishes to recognise another country's same-sex relationships.
	The third draft order I shall speak to is the Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005. The Civil Partnership Act made a substantial number of amendments to primary legislation to ensure parity of treatment between spouses and civil partners. However, power to make further consequential and supplementary amendments was included in Section 259 of that Act. This order invokes the powers under that section of the Act.
	The amendments in the order are, for the most part, minor and consequential. I shall take each in turn. The order amends the Family Law Act 1986 to enable civil partnership proceedings to be treated in the same way as matrimonial proceedings. The amendments were withdrawn from the Act before introduction as it became clear that alterations to the same provisions of the Family Law Act would need to be made to implement council regulation Brussels II Bis before the Civil Partnership Act could come into force. It seemed sensible to amend the Family Law Act as a consequence of the council regulation first and make the amendments in respect of the Civil Partnership Act in this regulation once the Family Law Act provisions were settled. The Matrimonial and Family Proceedings Act 1984 is amended to enable the transfer of family proceedings from a High Court to a civil partnership proceedings county court. A civil partnership proceedings county court is the name given to those courts which will be given the jurisdiction to hear civil partnership proceedings. Finally the Housing Act 1996 is amended to enable a deceased tenant's civil partner to succeed to an introductory tenancy in the same way as a deceased tenant's spouse can do at present.
	Finally I shall speak to the Civil Partnership (House of Commons Members' Fund) Order 2005. The trustees of the House of Commons Members' Fund have the power to make discretionary payments to former Members of the House of Commons, their widows, widowers or orphan children, having regard to their circumstances. So, for example, the trustees might choose to make a one-off grant to facilitate a minor home adaptation for an elderly widow whose income is small.
	The Civil Partnership Act 2004 amended the House of Commons Members' Fund Act 1948 with the intention of extending the range of potential beneficiaries of discretionary payments to surviving civil partners of persons who have been Members of the House of Commons. However, an amendment to the House of Commons Members' Fund Act 1939, which provides an overall definition of the categories of potential beneficiaries of payments from the fund, was omitted in error.
	This order, made in exercise of powers conferred by Section 255 of the Civil Partnership Act, corrects the omission and will ensure that trustees will have the power to make discretionary payments to surviving civil partners as originally intended. I beg to move.
	Moved, That the draft order laid before the House on 17 October be approved [6th Report from the Joint Committee]—(Lord Evans of Temple Guiting.)

Lord Kingsland: My Lords, apart from congratulating the Minister on the content and manner of his speech I have nothing to say except to endorse his observation that these measures have indeed at times seemed like a further plank in an endless raft of delegated legislation flowing from the Act.

Lord Addington: My Lords, I thought that my speech would be the quickest made on this subject tonight, but the noble Lord, Lord Kingsland, will probably beat me. We approved of the initial Act and we approve of these orders which make sure that it is implemented properly. We have absolutely no objection.

The Lord Bishop of St Albans: My Lords, I regret to say that my speech will be a little longer, but you will be aware that the proposal to introduce civil partnerships has been, and indeed remains, the subject of some controversy within the Church of England, although that is not the issue before us today. The purpose of this order, as it relates to the Church of England's pensions schemes, is simply to ensure that those schemes will be fully compliant with the law when the Civil Partnership Act comes into force.
	When the Act was in preparation, it became apparent that consequential amendments would be needed to the legislation governing Church of England pensions. This legislation is, of course, part of the law of the land, having been approved by Parliament and given Royal Assent. The Archbishops' Council and the House of Bishops therefore concluded that it would be sensible for the enabling powers contained in Sections 255 and 259 of the Act to be wide enough to cover Church legislation so that all the necessary amendments could be achieved as part of a single package. The Government and Parliament agreed.
	Since then, the Minister's officials and the Church of England's pensions administrators have worked together on the details and the Archbishops' Council and the House of Bishops have given their consent to the changes proposed in Part 8 and Schedule 7 of the order. These will enable the Church to continue to comply with the requirements for contracted-out pension schemes, as well as removing potential vulnerabilities to claims of discrimination.
	The Church of England's approach to this, as to other legislative changes arising from the Civil Partnership Act, has been shaped by the fact that civil partners, while they will rightly enjoy substantially the same legal rights as married couples, will not in fact be married. In particular, there need not necessarily be a sexual relationship between civil partners. So in agreeing to these amendments the Church is not in any way altering its doctrine of marriage. It is simply making it possible for the Church of England's pension schemes to continue to operate legally and effectively for the benefit of their members. It therefore follows that I support the order.

Lord Tunnicliffe: My Lords, as a member of the Merits of Statutory Instruments Committee of this House, I have slogged through every single order relating to the Civil Partnership Act and I assure noble Lords that they are all consequential and go no further than the Act or detract from it. I am delighted to support these orders, but I am even more delighted by the indication from the Minister that the torrent is almost at an end.

Lord Evans of Temple Guiting: My Lords, I am most grateful to the noble Lords, Lord Kingsland and Lord Addington, and the right reverend Prelate the Bishop of St Albans for their support, even though it was slightly qualified on the right reverend Prelate's behalf. To make a personal remark, it saddens me to think that there is continuing debate within the Church on this matter.
	I have nothing more to say except to thank noble Lords who have taken part in what we certainly cannot describe as a debate. I would like to put on record that the Civil Partnership Act will come into force in a few days' time—on Monday, I think. I am sure that, in years to come, people will look back and see it as a landmark piece of legislation that gives same-sex couples for the first time the right to legal recognition of their relationships. This legislation will make a genuine difference to people's lives and it demonstrates the Government's commitment to equality and social justice.

On Question, Motion agreed to.

Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005

Lord Evans of Temple Guiting: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
	Moved, That the draft regulations laid before the House on 27 October be approved [7th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005

Lord Evans of Temple Guiting: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
	Moved, That the draft order laid before the House on 19 October be approved [6th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Civil Partnership (House of Commons Members' Fund) Order 2005

Lord Evans of Temple Guiting: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
	Moved, That the draft order laid before the House on 13 October be approved [6th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.
	House adjourned at four minutes before eight o'clock.